Russell v. Hill

Headnote

Frivolous Appeal—Damages—Variancb—Amendment—Assignment op Mortgage—Practice.

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of Santa Clara County. Spencer, J.

Action for foreclosure of mortgage. The complaint alleged that the defendant executed to the plaintiff his promissory note, “in the words and figures following.” The note set out is to Edward F. Hall, Jr., the plaintiff’s assignor, and is signed “ John T. Hill.” The complaint alleges an assignment of the note to the plaintiff by E. F. Hall, Jr. When the case was called for trial, the plaintiff moved to amend his complaint sc as to allege that the note was executed to E. F. Hall, Jr., but oi the defendant’s counsel offering to allow the amendment, provided the defendant was granted the usual time to answer, the plaintiff’s counsel withdrew their motion, and consented to go to trial on the pleadings as they were. On the trial, when the note was offered in evidence, it was objected to as not

"being the note described in the complaint, as it appeared to have been delivered to Edward F. Hall, while the complaint declares upon a note made, executed, and delivered to the plaintiff; and because it also appeared that the note set forth in the complaint was signed John T. Hill, while the note offered in evidence was signed Jno. T. Hill; and when the mortgage was offered in evidence, it was objected to on the ground that there was nothing to show by the evidence, or by the pleadings, that it was ever assigned. The objections were overruled, and defendant excepted. On the close of the evidence, the Court permitted the plaintiff to amend his complaint so as to make it conform with the evidence, by alleging the making and delivery of the note to “ Edward F. Hall, Jr.,” instead of “to the plaintiff,” and also by inserting the word Jno. instead of the word “ John.”