Page:United States Statutes at Large Volume 47 Part 1.djvu/959

 72d C ONGRESS. SESS. II. CH. 127 . -FEBRUARY 27, 1933 . 935 VARIANCE ; MISTAKES IN PLEADING AND AMENDMENTS Variance; mistakes in pleadings and amend- ments. SEC. 167. MATER IAL VARIANCE, HOW PROVIDED FOR .-NO var ia nce How provided for. betwee n the alle gatio n in a ple ading and the p roof is to be d eemed when mate rial' material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. W henev er it appe ars t hat a part has been so mi sled, the court may order the pleading to be amended, upon such terms as may be just. SEC. 168 . IMMATERIAL VARIANCE, HOW PROVIDED FO R .-Where the Immaterial. variance is not material, as provided in section 167, the court may direct the fact to be found according to the evidence, or may order an immediat e amendment, without costs. SEC. 169. WHAT NOT TO BE DEEMED A VARI ANCE .-Where however wh at not to be the al legat ion of the clai m or defen se to whic h the proo f is directed, deemed a variance. is -unproved, not in some particular or particulars only, but in its genera l sco pe and mea ning, it is not to be dee med a case o f variance, within sections 167 and 168, but a failure of proof. SEC. 170. AMENDMENTS OF COUR SE, AND rX r' ECT OF DEMURR ER. -Any Amendments of pleading may be amended once by the party of course, and without course effect of costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amend ed and ser ving a cop y on the a dvers e par ty, who may hav e ten da ys thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time ; and when the demurrer to a complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed. If a demurrer to the answer be over- rul ed, the fa cts alleged in the answer mu st be considered as de nie d, tuna, p. 934. to the exte nt me ntion ed in sect ion 163 . SEC. 171. PLEADING MAY BE AMENDED .-The court may in further- Pleadings ance of justice, and on such terms as may be proper, allow a party to ment of. amend any plead ing or pro ceedi ng by addi ng or stri king out the name of any part y, or by c orrec ting a mis take in the nam e of a par ty, ora mistake in any other respect ; and m ay, u pon l ike terms, en la rge the time for answer or demurrer. The court may likewise, in its discre tion, afte r not ice to the adve rse p arty, allo w, up on su ch te rms as may be just, an amendment to any pleading or proceeding in other particulars and may upon like terms allow an answer to be made after the time limited by this code. REL IEF FRO M JUD GMENT OR ORDER ; TI ME FOR APPLICATION ; PRO- Relief from judgment CEDURE .-A nd ma y, al so, u pon s uch terms as may be jus t, re li eve a or order . party or his legal representative from a judgment, order, or other pro cee di ng ta ken against"him th ro ugh his mistake, inadvertence, su r- prise, or e xcusa ble neglect ; provided, that application therefor be Application maldn made within a reasonable time, but in no case exceeding six months Proce gaure. after such judgment, order, or proceeding was taken (and provided, furth er, t hat s aid a pplic ation must be a ccomp anied with a co py of the an swer, or o ther plead ing p ropos ed to be f iled there in, o therw ise sa id application shall not be granted) . W hen f rom any ca use the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal' representative, at any ti me within one year after the rendition of any judgment in such action, to answer to the merits of the original action . Personal property, re . AC TION TO RE CO VER PERSONAL PR OPE RT Y .-When, in an action to wary. recover the possession of personal property, the person making any affidavit did not tr uly state the value of the property, and the off ic er taking the property, or the sureties on any bond or undertaking is su ed for tak ing the sa me, the of ficer or s ureti es may in their
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