Ellen v. Lewison

Citations

• 88 Cal. 253
• 26 P. 109
• 1891 Cal. LEXIS 679

Syllabus

<p>Trial—Amendment of Complaint — Time to Answer — Discretion.— Where the complaint is amended upon the trial, by the addition of a few lines, to obviate an objection to the admission of evidence upon a point which the pleader had evidently intended to make by the original complaint, it is not an abuse of discretion to require the defendant to answer the amendment immediately, if the answer could he easily made at once without inconvenience to the defendant.</p> <p>Setting aside Gift — Fraud — Undue Influence — Mental Incompetency — Pleading — Amendment — Continuance — Surprise. — Where it is clear, from the inspection of the complaint in an action to set aside a gift of a father to his daughter, that the pleader intended to charge not only that the giver was mentally incompetent to make the gift, but also that he was induced to make it by the fraudulent acts and undue influence of his daughter, it is not error to refuse a continuance on the ground of surprise at an amendment allowed by the court at the trial, out of abundant caution, so as to charge more specifically that the gift was so induced.</p> <p>Id. — Evidence — Rebuttal of — False Representation — Accusation of Theft. — Evidence that the donor was in the habit of keeping large sums of money in his house, and that a witness had helped him to carry there a large sum of money, is not admissible in rebuttal of evidence that the donee had represented to her father that her sister’s husband had come to her father’s house after he was stricken with paralysis and had stolen a large sum of money, if it does not appear at what definite time it would be shown that the money was kept in or carried to the house.</p> <p>Id.—Weight of Money Carried away.—Where the sister’s husband, accused of theft, has testified in behalf of the plaintiff that he had taken away from the house of the donor of the gift in controversy a small sum of money in a hand-satchel, and certain hooks and papers in a large satchel, by the order of t