Hackett v. Bank of California

57 Cal. 335

Opinion

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 unproved, “ not in some particular or particulars only, but in their general scope and meaning.”

The nonsuit should have been granted.

Judgment and order reversed, and cause remanded, for further proceedings.