McGary v. Pedrorena

Citations

• 58 Cal. 91

Syllabus

<p>Amendment of Complaint—Service of Amendment—Practice.—In order to give effect to both of sections 432 and 472 of the Code of Civil Procedure, it must be held that the former applies to amendments made before answer filed, and before the trial of an issue of law upon a demurrer; and that the latter applies to amendments made after answer filed, or after the trial of an issue of law upon a demurrer. Under the latter section, as it stood prior to the amendment of March 9th, 1880, service of the amendment upon the defendants was not required unless ordered by the Court.</p> <p>Id.—Id.—Id.—Judgment by Default—Bill of Exceptions—Appeal.—In an action for foreclosure against P., the mortgagor, and M. and others, the former appeared and the other defendants made default, and after-wards the complaint was amended and judgment entered against all the defendants. On appeal by the defendants P. and M., it appeared by a bill of exceptions taken by the former, that when the case was called he objected to a trial, on the ground that the other defendants had not been served, and that it was admitted that this was the case. Held, that the defendant P. could not take advantage of the failure to serve the amendment upon the other defendant, and that the defendant M. could not avail himself of the exception taken by P., and consequently that no error as to him appeared upon the judgment roll.</p>