Stewart

The court below sustained a demurrer to the fourth amended complaint, denied the application of the plaintiff to file a fifth amended complaint and thereupon rendered judgment dismissing the action. From this judgment the plaintiff appeals.

It was not error for the court to refuse to allow further amendments to the complaint. When a demurrer is sustained to a complaint it is within the discretion of the court either to allow an amended complaint to be filed or to give judgment forthwith in favor of the defendant. The appellate court will in every such case sustain the action of the court below, whatever course it may take, unless it is made to appear by the record that there has been an abuse of discretion. The plaintiff merely asked leave to file an amended complaint, and, so far as the record discloses, did not show that there were any allegations of fact omitted from the complaint to which the demurrer had been sustained which, if inserted therein, would in any respect change its legal effect, nor make any statement whatever of the grounds or reasons for making the application for leave to amend. There was clearly no abuse of discretion shown. (Kleinclaus v. Dutard, 147 Cal.…