Page:United States Statutes at Large Volume 31.djvu/398

 346 FIFTY-SIXTH CONGRESS. Sess. I. Ch. 786. 1900. CHAPTER ELEVEN. ' OF MISTAKES IN PLEADINGS AND AMENDMENTS. Sec. . Sec. ‘ _ 87. When variance deemed material. *,94. When defendant may be sued by 88. When variance not material. fictitious name. 89. What deemed a failure of proof. 95. Amended pleadings before trial to be 90. What pleading may be amended of new pleadings. course. 96. Pleading not verified, or containing 91; Amendments and pleading over after several causes of action or defense demurrer. _, not separately stated, may be 92. Amendments allowed by court before stricken out. - A trial or submission. 97. No error to be regarded unless it 93. Court may’enlarger time to plead, or affect substantial rights. relieve party §rom judgment. 98. Supplemental pleadings. lr WMD "“’—*““·"° SEc. 87. No variance between the alle ation in a leading and the m ria]. dee ed mm proof shall be deemed material, unless it sghall have acltually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order _ the pleading to be amended upon such terms as shall be just. m:',§§’j,f’“““°° “‘§" Sec. 88. When the varianceis not material, as provided in the last ` section, the court may direct the fact to be found according to the evidence, or mw order an immediate amendment, without costs. ur;V({}¤;§0*§¤€d°*¤l· Sec. 89. -hen, however, the allegation of the cause of action or ` defense to which the proof is directed is unproved, not in some garticular or particulars only, but in its entire sco e and meaning, it S all not be deemed a case of variance within the last two sections, but a Wh‘“Pl""“““g my fagum fill prlicof. l d` b d d b th rt n f ~ EG. . ny ea in .may e once amen e e a yo course, mmended Ummm without costs anld withegut (prejudice to the proceebdingspalready had, at any time before the perio for answering 1t shall expire; in such case a copy of the amended pleading shall be served on the adverse party . before the expiration of said period. ,$§§g‘”§§,§§ gg} Sec. 91. A ter the decision upon a demurrer, if it be overruled, and gemurrer- it appears that such demurrer was interposed in good faith, the court may, in its discretion, allow the party to pleadlover, upon such terms as may be proper. If the demurrer be sustained the court may, in its discretion, allow the party to amend the pleading demurred to, upon such terms as may be proper. A¤¤¢¤dm¤¤*¤ ¤r SEo. 92. The court may, at any time before trial, in furtherance of lowed by court before. . . trialor submission. ]ust1ce, and upon such terms as may be Eroper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause, and in like manner and for like reasons it may, at ang time before the cause is submitted, allow such pleading or procee ing to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceedin to the facts proved. .°°“” my °¤l°’g° SEc. 93. Tie court may likewise in its discretion and noon such YIIDE to plead, or re-. . ’ * nevepmy from judg- terms as may be just, allow an answer or reply to be made or other m°'“‘ act to be done after the time limited by this code, or by an order enlarge such time; and may also, in its discretion, and u on such terms as may be just, at any time within one year after notice Eiereof, relieve ` a party from a judgment, order, or other proceeding taken against _ _ _ him through his mistake, inadvertence, surprise, or excusable neglect. MWSQQQ P§,‘;,‘“,§§§tf,?j)*},§ SEo. 94. When the plaintiff shall be ignorant of the name of adefendname. ant, such defendant may be designated in any-pleading or proceeding