This is an appeal by plaintiff from an order denying plaintiff’s motion to set aside nonsuit and to reopen cause and for consent to file amendment to pleadings.

The factual situation as disclosed by the record is as follows:

Plaintiff commenced an action against defendant upon a promissory note executed by defendant to one Catalina S. Cruz for the sum of $5,400. Tlie complaint alleged the corporate existence of defendant, the execution of the note, which was set out in full, and further that nothing had been paid on the note. There was no allegation that the note had been assigned by the payee to plaintiff. A general demurrer was interposed by defendant, and no appearance being made at the time it came on for argument the demurrer was overruled by the court. Defendant thereafter filed an answer, admitting the execution of the note but denying that it was made for a valuable consideration, or that anything was due to plaintiff upon it; and also setting up four separate defenses.

The case came on for trial on December 8, 1950. Plaintiff called as a witness Catalina Cruz, the payee of the note, who testified as to the execution of the note and that nothing had been paid upon it. Plaintiff’s counsel then sought to introduce in evidence the assignment from the payee to plaintiff and the following appears in the reporter’s transcript:

On December 13, 1950, plaintiff filed a notice of motion to set aside nonsuit and to reopen the cause and for consent to file an amendment to the pleadings. Accompanying said notice of motion was an amended complaint setting forth an assignment of the promissory note from Catalina S. Cruz, the payee therein named, to plaintiff, and the affidavits of Robert N. Blewett and of Rolla L. Garretson, Jr., in support of the motion. Said affidavits alleged the following: Robert N. Blewett, as one of the attorneys for plaintiff prepared the original complaint in the action, and that through inadvertence and mistake the original complaint did not contain the allegation that the note sued upon had been assigned to plaintiff. That on the day before the trial Robert N. Blewett, because of his illness, asked one of his associates, Rolla L. Garretson, Jr., to handle the matter, and that Rolla L. Garretson. Jr., had a short time to prepare the case, and through inadvertence was not aware of the fact that the assignment had not been alleged in the original complaint, and that when the point was first raised at the trial, a general demurrer hav ing been previously overruled, Rolla L. Garretson, Jr., through inadvertence failed to move the court for an amendment to the complaint to allege the assignment, and that an amendment to the pleadings would simply allege the assignment of the note sued on, and that this would in no manner change the cause of action or cause any prejudice to the defendant who was prepared to proceed with the trial of the action on its merits, having all of its witnesses present in court, and that it would defeat the ends of justice and be an abuse of judicial discretion to permit the judgment of nonsuit to remain. No counteraffidavits were filed.

On February 5, 1951, the court made the order from which the appeal is taken, said order reading: “It is ordered that the motion to set aside is denied, provided, however, that the order for a non-suit heretofore entered be amended by adding the words: ‘Without prejudice.’ ”

Appellant contends that section 473 of the Code of Civil Procedure authorizes a court in furtherance of justice to allow a party to amend any pleading and to relieve a party from any judgment or order taken against him through his mistake, inadvertence, surprise or excusable neglect, and that under the facts of the instant case the order appealed from was an abuse of the court’s discretion and should be reversed.

Respondent concedes that, as stated in the case of Hughes v. Chung Sun Tung Co., 28 Cal.App. 371 [ 154 P. 299, 301 ], a trial court has power, after a nonsuit has been granted, to set it aside and permit the filing of an amended complaint. But respondent contends that there has been no showing of any abuse of discretion in the instant ease because, argues respondent, appellant has had her day in court, the defects in pleading and evidence necessitating the nonsuit were called to the attention of appellant’s counsel in the course of the trial and he did nothing to remedy them but rested his ease prior to the granting of the nonsuit.

As was said in Berry v. Chaplin, 74 Cal.App.2d 669 , at page 672 [ 169 P.2d 453 ]:

And in the early case of Lybecker v. Murray, 58 Cal. 186 , the court said at page 189:

In Fine v. Fine, 76 Cal.App.2d 490 , the court said at page 495 [ 173 P.2d 355 ]:

It is apparent that the instant action was one brought on a promissory note by the person to whom it had been assigned for collection. The allegation as to the assignment of the note to plaintiff was omitted, due undoubtedly to an oversight, as there is no intricacy in such a pleading. A general demurrer was interposed by defendant and this was overruled by the court without being argued. Defendant filed an answer, not denying the execution of the note, but denying consideration and denying that anything was due to plaintiff thereon. Defendant also set up a number of special defenses, in one of which it was alleged that plaintiff had no beneficial interest in the note. It is apparent also that the counsel who appeared at the trial for plaintiff had not drawn the complaint but knew that a general demurrer to it had been overruled. When counsel for appellant sought to introduce the assignment in evidence objection was made by respondent’s counsel that it was not within the issues, and counsel for appellant, due no doubt to inexperience and surprise, did not ask leave to amend the complaint (which amendment would, of course, have been allowed by the court), and the objection was sustained, and the granting of the nonsuit followed as shown by the record.

We believe that when the assignment was offered in evidence, and objection to its introduction was made, and it appeared that the allegation as to the assignment had been omitted from the complaint, the trial judge should have suggested to counsel for appellant that the complaint be amended in this respect. For as said in the ease of Farrar v. Farrar, 41 Cal.App. 452 , at page 457 [ 182 P. 989 ] :

In Hellings v. Wright, 29 Cal.App. 649 this court said at page 656 [ 156 P. 365 ]:

In Bare v. Parker, 51 Cal.App. 106 , at page 108 [ 196 P. 280 ], it is stated:

In Estate of Dupont, 60 Cal.App.2d 276 , the court said at page 290 [ 140 P.2d 866 ]:

And in the recent ease of Feigin v. Kutchor, 105 Cal.App.2d 744, at 748 [ 234 P.2d 264 ], this court said:

In view of the foregoing authorities, we are convinced that the trial court, having permitted the nonsuit to be granted, should have granted appellant’s motion to set aside the nonsuit and permit the filing of the amendment shoAving the assignment, and that, under the peculiar circumstances of the instant case, it was an abuse of discretion to deny said motion. The beneficent provisions of section 473 of the Code of Civil Procedure are intended to permit amendments and to relieve a party “from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect,” when such action is in furtherance of justice. Here it is undisputed that defendant was present in court with his witnesses, and with the making of the simple amendment showing the assignment of the note to plaintiff, the trial could have proceeded and the controversy between the parties could have been determined expeditiously upon its merits and in accordance with substantial justice. As was said in Airline Transport Carriers v. Batchelor, 102 Cal.App.2d 241, 248 [ 227 P.2d 480 ]:

The order appealed from is reversed with directions to the trial court to set aside the judgment of nonsuit and to permit the filing of the amended complaint.

Adams, P. J., and Van Dyke, J., concurred.

A petition for a rehearing was denied April 24, 1952, and respondent’s petition for a hearing by the Supreme Court was denied May 26, 1952.