On the trial of the main case (S. F. No. 1343) plaintiff’s counsel asked leave of the court to amend his complaint in certain particulars, and, there being no objection, the court allowed the amendment to be made. The amendment consisted in changing one to four in the second count, so that the claim for services would be four thousand seven hundred and fifty dollars, instead of seventeen hundred and fifty "dollars, and the prayer of the complaint was also amended to correspond with such change. The amendment was made on the original complaint on file, by writing over the former words and figures the substituted words and figures. The trial of said action resulted in a verdict for the plaintiff in the sum of five thousand dollars. A motion for a new trial was made on a bill of exceptions, which motion was denied. Thereupon the defendant appealed from the judgment and order denying a new trial. The transcript on said appeal was filed in this court March 2, 1898, and thereafter in due course the opening brief on the part of the appellant and the brief of the respondent were filed, and the reply brief of appellant was filed May 31, 1898. Up to this time the defendant and appellant had been represented by Chamberlin and Wheeler as his attorneys. In October, 1898, additional points and authorities were filed on the part of the appellant, who was then represented by J. W. Turner in place of his former attorneys. Thereafter, while the case was still pending here, in December, 1899, the defendant and appellant, through his substituted attorney Mr. Turner, moved the court below to correct the record by striking out the words and figures inserted by way of amendment in the original complaint, and restore the former words and figures, on the ground that the said amendment was not properly authorized. The court below denied the motion to amend and correct the record, and from that order the defendant took an appeal, being case Mo. 2213. On the hearing of the motion to amend the record it appeared, both from the rough minutes, and as entered into the book of permanent minutes, that by consent plaintiff was granted leave to amend his complaint herein by inserting the word “four” in lieu of “one” on page 3 of said complaint after the word “of”; also, by inserting the figure “4” in lieu of “1” after the word “dollars.” Mr. Buck, one of plaintiff’s attorneys, also testified that he called Mr. Chamberlin’s attention to the fact that he desired to make the amendment, and when they came into court, and before the trial commenced, he asked leave of the court to make such amendment, and that he then made the amendments and showed them to Mr. Chamberlin, and he consented to them, and that the motion was granted with his consent.

A mere statement of the case would seem to dispose of this appeal. However, appellant’s counsel presses the matter with, such earnestness as to require, perhaps, some notice of his contention. It is a common occurrence for the trial court to allow pleadings to be amended both before and during the trial of a cause, on the consent of the opposite party, or without such, consent on a proper showing, where it can be done without ma terial prejudice to the other side. Such practice may and generally does facilitate the disposition of business. In this case to have continued the trial to allow the complaint as amended to be engrossed and copied, served on the adverse party, with time allowed to file an amended answer thereto, would have served no useful purpose. The amendment could as well be made then and there on the original complaint, and the answer on file stand as the answer to the complaint as amended, and the trial proceed, as was done. This -being so, it is too late for the party who consented to the amendment, or made no objection thereto, to raise any question as to its regularity. A party may appear in person or by attorney, but when he appears by attorney the latter, while acting as such, has control and management of the case, and his sayings and doings in the presence of the court concerning the trial of the cause are the same as though said and done by the party himself. (Board of Commrs. v. Younger, 29 Cal. 149 ; Mott v. Foster, 45 Cal. 72 ; Wylie v. Sierra Gold Co., 120 Cal. 486 ; Crescent Canal Co. v. Montgomery, 124 Cal. 135 .) Conceding, as claimed by appellant’s attorney, that the provisions of the code as to the mode in which an attorney may bind his client by stipulation (Code Civ. Proc., sec. 283) are like the statute of frauds, still that does not aid him. Where by the statute of frauds certain contracts . are declared void unless in writing, it has always been held that performance, or even part performance, of the agreement takes the case out of the operation of the statute. Otherwise, as said, instead of the statute being one to prevent frauds, it would afford the means for perpetrating frauds. After the trial and judgment, and pending an appeal from such judgment, and order denying a new trial, the court below very properly refused to grant the motion in question, which in effect would have been to rescind its former action to the prejudice of plaintiff, without fault on his part being shown. (See Smith v. Whittier, 95 Cal. 279 .)

In case No. 1343 the appeal is taken from the judgment and order denying a new trial, and both eases were argued and submitted together.

The appeal having been taken more than sixty days after the entry of judgment, the question whether the evidence is sufficient to support the verdict cannot be reviewed on such appeal from the judgment. (Code Civ. Proc., sec. 939.) The appeal from the order denying a new trial presents very few questions. The motion was based on two grounds only, to wit, errors of law occurring at the trial, and that the evidence did not sustain the verdict. On the hearing of the motion, however, only the questions of errors of law occurring at the trial were urged or considered by the court below. Among the assigned errors are:

These are the only material errors assigned and relied upon by appellant’s counsel on appeal.

The order refusing to correct the record (case No. 2213) is affirmed. The judgment and order denying a new trial in the main case (No. 1343) are also affirmed.

Harrison, J., and Garoutte, J., concurred.

87 Am. Dec. 164 .