Pottkamp

This action was commenced June 16, 1888, and defendants answered and filed a cross-complaint, upon which issue was also taken. During the trial, plaintiff asked and obtained leave to file an amended complaint; but *463 when it was prepared the court refused to permit it to be filed, upon the ground that it did not conform to the proofs. Judgment went against the plaintiff, and his motion for a new trial was denied. On December 8, 1892, this court reversed the judgment and order upon the ground that the court below erred in refusing to permit the plaintiff to file his amended complaint, and remanded the cause “for a new trial, with leave to the parties to amend their pleadings”: 3 Cal. Unrep. 694 , 31 Pac. 1121 . On February 21, 1893, the plaintiff, without motion therefor, or leave given by the court below, filed an amended complaint, and defendants moved to strike it from the files. That motion was denied, and defendants excepted.

Appellants contend that an application to amend is never general, but always specific, and, as plaintiff did not file the amended complaint which he had asked leave to file during the first trial, that he had no right to file a different amended…