 | Lawrence Lewis, Adelbert Hamilton, John Houston Merrill, William Mark McKinney, James Manford Kerr, John Crawford Thomson - Railroad law - 1882 - 706 pages
...page 1034, Wag. Stat, 1872. No variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the...party to his prejudice in maintaining his action or defence upon the merits. Sec. 1, Art. supra ; Fisher v. Max, 49 Mo. 404 ; Turner v. Railroad, 51 Mo.... | |
 | Claims against decedents' estates - 1884 - 752 pages
...the allegations in a pleading and tlie proof, is to b<deemed material, unless it has actually mislead the adverse party to his prejudice in maintaining...defense upon the merits. Whenever it appears that party has been so misled, the Court may order the pleadings to be amended upon such terms as may be... | |
 | New York (State). Court of Appeals - Law reports, digests, etc - 1883 - 650 pages
...of variance; it declares that " no variance between the allegation in a pleading and a proof shall be deemed material unless it has actually, misled the adverse party to his prejudice iu maintaining his action or defense upon the merits." Code of Pro. § 169. The plaintiffs in this... | |
 | Law reports, digests, etc - 1897 - 1148 pages
...specifically made, tt was waived, because by section 4C9, Code Civ. Proc., It is expressly declared that "no variance between the allegation in a pleading...misled, the court may order the pleading to be amended, on such terms as may be just." There can be no better evidence that a party has not been misled to... | |
 | Law reports, digests, etc - 1923 - 1220 pages
...at the trial, the .court probably would have permitted intervener to amend by alleging such failure. "No variance between the allegation in a pleading...action or defense upon the merits. Whenever it appears thnt a party has been so misled, the court may order the pleading to be amended, upon such terms as... | |
 | Law reports, digests, etc - 1917 - 1212 pages
...1907, § 3001, expressly provides: "No variance between- the allegations in a pleading and the proof U to be deemed material, unless it has actually misled...merits. Whenever it appears that a party has been во misled, the court may order the pleading to be amended, upon such terms as may be just." No contention... | |
 | Law reports, digests, etc - 1920 - 1156 pages
...between the pleadings and the proof, which we will go so far as to say, our Code provides that — "No variance between the allegation in a pleading...party to his prejudice in maintaining his action or defcn.se upon the merits. Whenever it appears that a party has been so misled, the court may order... | |
 | Law reports, digests, etc - 1911 - 1168 pages
...that there was a variand the proof submitted at the trial. Section 4225, Rev. Codes, provides that "no variance between the allegation in a pleading...actually misled the adverse party to his prejudice Lu maintaining his action or defense upon the merits. Whenever it appears that the party has so been... | |
 | Law - 1884 - 1022 pages
...5294 of the Revised Statutes, " No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled...maintaining his action or defense upon the merits, and when it is alleged that a party has beer so milled, that fact must be proved to the satisfaction... | |
 | Law reports, digests, etc - 1914 - 1246 pages
...failure of proof. Section 99, LOL No variance between the allegations of the pleadings and the proof is deemed material, unless It has actually misled the...his prejudice In maintaining his action or defense on the merits. Section 97, LOL We feel sure that the variance between the complaint and the proof as... | |
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No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. 
