
    Decided at Pendleton, July 20, 1895.
    CLEMENS v. HANLEY.
    
      [41 Pac. 658]
    Amending Pleadings to Conform to Proofs — Discretion of Court— Code, § 101. — ’The granting or refusing leave to amend a pleading on the trial so as to conform to the facts as proved, under section 101, Hill’s Code, is a matter of discretion with the trial court, and its action will not be reviewed except for an abuse thereof.
    
    Appeal from Harney: James A. Fee, Judge.
    Action by Peter Clemens against W. D. Hanley and another in which plaintiff recovered seven hundred and fifty dollars, and defendants appeal.
    Affirmed.
    For appellant there was an oral argument by Mr. John J. Balleray.
    
    For respondent there was an oral argument by Mr. John L. Rand.
    
    
      
      In this connection see the cases of Cook v. Croisan, 25 Or. 475, and Mendenhall v. Harrisburg Water Company, 27 Or. 38, on the same subject. — Reporter.
    
   Opinion by

Mr. Chief Justice Bean.

The assignments of error in the notice of appeal are as follows: (1.) Irregularity in the proceedings and in the orders of the court, and abuse of discretion by which defendants were prevented from having a fair trial. (2.) Surprise which ordinary prudence could not have guarded against. (3.) Insufficiency of the evidence to justify the verdict or judgment. (4.) Error in law occurring at the trial and duly excepted to by the defendant. There is no bill of excéptions in the record, and hence the last three assignments of error, even if otherwise sufficient, go for naught, as there is no foundation upon which they can rest. The first assignment is also indefinite and uncertain, but it is claimed that it is sufficient to raise the question as to whether the court abused its discretion in allowing an amended reply to be filed during the progress of the trial. The statute provides for the amendment of a pleading at any time before the cause is submitted by conforming the pleading to the facts proved when such amendment does not substantially change the cause of action or defense: Hill’s Code, § 101. But leave to so amend is granted or refused in the sound discretion of the trial court, and its action will not be reviewed here except for an abuse of such discretion, which does not appear in this case. We have nothing before us but the original and amended replies, and from them it does not appear that the allowance of the amendment was an abuse of discretion by the trial court, and it follows that the judgment must be affirmed.

Affirmed.  