Morris

This is an action for the foreclosure of certain mortgages upon real property situated in the city of Sacramento.

Judgment went against defendant Hartley for the several sums mentioned in plaintiff’s amended complaint? as secured by said mortgages and foreclosure was ordered. It was found by the court that defendant, Broooke Realty Company, had no-interest in the subject-matter of the action. Defendant Hartley made default. Defendants Trainor and Bethel answered. Defendant Bethel alone appeals, his appeal being from the judgment and from the order denying his motion for a new trial.

There are two separate transcripts, the present -one, No. 1116, an appeal from the judgment, and No. 1271, an appeal from the order. By stipulation both appeals are presented together in the same brief.

The land involved consists of two separate parcels—one parcel being the north one-half of the south one-half of lot numbered one in the block bounded by T and U and 25th and 26th streets (hereinafter designated as parcel “A”); the other parcel being the south one-quarter of said lot (hereinafter designated as parcel “B”), the two parcels constituting the south one-half of said lot.

It appears that,…

Appellant petitions for a rehearing. The point especially urged is that the court erroneously held that the demurrer to the original complaint could not be considered as a demurrer to the amended complaint.

As shown in the opinion, heretofore filed, the judgment was entered six days after the amended complaint was filed. Appellant contends that he was entitled to ten days in which to demur or answer. It frequently happens that amendments are made by leave of court to conform to the evidence adduced at the trial. We do not understand that in such cases the opposing party can stand by without answering or demurring and, after the court has made its findings and entered its judgment, claim that he was deprived of his right to answer or demur. If he has objection to the amended complaint as allowed by the court he should seasonably make such objection *73 known or he must be deemed to have waived such objection. In the present case he was duly served with a copy of the amended complaint which recites that it was filed “by leave of court first had and obtained.”

It is further contended that the amendments to the complaint were trivial and did not require a new demurrer. Citing Flood…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 63 This is an action for the foreclosure of certain mortgages upon real property situated in the city of Sacramento. Judgment went against defendant Hartley for the several sums mentioned in plaintiff's amended complaint as secured by said mortgages and foreclosure was ordered. It was found by the court that defendant, Brooke Realty Company, had no interest in the subject-matter of the action. Defendant Hartley made default. Defendants Trainor and Bethel answered. Defendant Bethel alone appeals, his appeal being from the judgment and from the order denying his motion for a new trial. There are two separate transcripts, the present one, No. 1116, an appeal from the judgment, and No. 1271, an appeal from the order. By stipulation both appeals are presented together in the same brief. The land involved consists of two separate parcels — one parcel being the north one-half of the south one-half of lot numbered one in the block bounded by T and U and 25th and 26th streets (hereinafter designated as parcel "A"); the other parcel being the south…