Schoonmaker v. Blass

This action was brought to foreclose a mortgage on real estate. The appellant was made a party defendant, his name appearing as such in the title of the action in the summons and complaint. He was not, however, named in the body of the complaint, and there was nothing therein to show what connection he had with the mortgaged property or the cause of action alleged in the pleading. He served an answer containing a general denial of the allegations of the complaint. The order appealed from recites that, upon the action coming on for trial, the court ordered it marked off the calendar, and that the complaint be amended by “alleging a cause of action against said defendant.” The court had power, under section 723 of the Code of Civil Procedure, to direct an amendment of the complaint upon the trial. A good cause of action was stated in the complaint, but the relation of the appellant to that cause of action did not appear, and it was clearly competent for the court, at the trial, to correct that mistake by permitting an insertion of an allegation material to the case. The order granted is, however, too broad in terms, as it permits the plaintiff to allege any cause of action against the appellant. It should be modified by permitting the insertion of an allegation in the complaint showing that the appellant has some interest in the mortgaged premises subsequent to the mortgage, or some other material connection with the cause of action therein alleged, and, as so modified, is affirmed, without costs. All concur.