Hackett v. Bank of California
California Supreme Court
Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Nineteenth District Court, City and. County of San Francisco. Wheeler, J. On the trial of the action in the Court below, the plaintiff having examined several witnesses, who were agents and officers of the defendant, rested.
Read the full summary
Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Nineteenth District Court, City and. County of San Francisco. Wheeler, J. On the trial of the action in the Court below, the plaintiff having examined several witnesses, who were agents and officers of the defendant, rested. The defendant then moved for a nonsuit; and pending the motion, the plaintiff moved for and obtained leave to file the amended complaint referred to in the opinion, so as to make the complaint conform to the evidence; and thereupon the motion for a nonsuit was denied.
1Opinion of the Court
The Court :
The Court below erred in allowing the plaintiff to file the second amended complaint, which changed the proceeding from an action ex delicto to an action ex contractu. (Ramirez v. Murray, 5 Cal. 222.) Section 473 of the Code of Civil Procedure, except in certain particulars which do not affect the question, is like § 68 of the former Practice Act, as the same was amended in 1853, and as the same stood when Ramirez v. Murray was decided.
The amendment was not permissible under § 470 of the Code of Civil Procedure, because here the allegations “ to which the proof was directed ” weré…
2Cases cited1 opinion
- Ramirez v. MurrayCalifornia Supreme Court · 1855
3Cited by8 opinions
- Austin v. Massachusetts Bonding & InsuranceCalifornia Supreme Court · 1961
- Frost v. WitterCalifornia Supreme Court · 1901
- Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co.Supreme Court of Oklahoma · 1910
- Vick v. GrasserCalifornia Court of Appeal · 1959
- Altpeter v. Postal Telegraph-Cable Co.California Court of Appeal · 1915
3 more not listed; retrieve them via the Exa API.