 | North Carolina. Supreme Court - Law reports, digests, etc - 1884 - 738 pages
...and comprehensive terms that, " No variance between the allegation in a pleading and the proof shall be deemed material unless it has actually misled the...party, to his prejudice in maintaining his action upon the merits." If it is alleged that a party has been misled, that fact must be proved to the satisfaction... | |
 | Law reports, digests, etc - 1914 - 1244 pages
...the trial court, was justified under Code Civ. Proc. §§ 469, 470, declaring that no variance shall be deemed material unless it has actually misled the...adverse party to his prejudice in maintaining his defense upon the merits, and providing that where the variance is not material, the court may order... | |
 | Law reports, digests, etc - 1912 - 1164 pages
...plaintiff was violently thrown therefrom to the ground. This is the gravamen of the charge. No variance is to be deemed material unless it has actually misled the adverse party to his prejudice. The defendants could not have been surprised or misled by the testimony offered in support of the amended... | |
 | Law reports, digests, etc - 1896 - 1212 pages
...the court. Section 4225, Rev. St., provides that no variance between the allegations and proofs shall be deemed material, unless it has actually misled the adverse party, to his prejudice. In that case ,it is the duty of the adverse party to show such fact to the court. When the variance is... | |
 | Law reports, digests, etc - 1902 - 1172 pages
...variance between the allegations In a pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense on the merits." Civ. Code, § 133. A departure from the pleadings in those mere incidents of evidence... | |
 | Iowa, Emlin McClain - Law - 1884 - 940 pages
...which an answer shall be tiled thereto. AMENDMENTS. SEC. 2686. No variance between the allegations in a pleading and the proof is to be deemed material, unless it lias actually mis- Rl '-•>'-•_. lead the adverse party to his prejudice in maintaining his action... | |
 | Law reports, digests, etc - 1908 - 1164 pages
...or may order an immediate amendment. Code Civ. Proc. § 470. A variance is material only when It has misled the adverse party to his prejudice in maintaining his action or defense on Its merits (section 469), and becomes a failure of proof when the allegations are not proved in'their... | |
 | Law reports, digests, etc - 1895 - 1148 pages
...— VAKIANCE. Undei Code Civ. Proc. § 4G9. providing that no variance between the allegation in :i pleading and the proof is to be deemed material unless it has misled the adverse party, where a complaint by a judgment creditor of a corporation against a stockholder... | |
 | Law reports, digests, etc - 1893 - 1176 pages
...ground for reversal under Rev. St. 1881, § 391, which declares that "no variance between pleading and proof is to be deemed material unless it has actually misled the adverse party to his prejudice." 2. An executed parol agreement for the construction of a ditch across ono man's land, to drain the... | |
 | New York (State), Charles David Rust - Civil procedure - 1885 - 814 pages
...the court deems just. § 539. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse...party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars... | |
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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. 
