
    [Civ. No. 6701.
    Second Appellate District, Division Two.
    April 29, 1931.]
    ANNIE BROWN, Respondent, v. HOMER E. SWEET, Appellant.
    Rupert B. Turnbull for Appellant.
    Lander W. Butterfield and William F. Brooks for Respondent.
   CRAIG, J.

Upon a previous trial of this case in the superior court judgment was rendered in favor of the defendant, which judgment was reversed upon the ground that the evidence was wholly outside the issues as joined by the parties, that the admissions contained in the answer foreclosed the defendant’s claims, and that the findings of fact were erroneous. (Brown v. Sweet, 95 Cal. App. 117 [272 Pac. 614].) A subsequent trial resulted in a judgment for the plaintiff, from which the defendant appealed.

During the entire retrial appellant strenuously urged admission of the same evidence as that offered and erroneously received in the first instance, which upon objection by the plaintiff was this time rejected. A motion was made for leave to amend the answer, to incorporate other and different descriptions of properties, and to> deny allegations of the complaint which had theretofore been admitted, which motion was denied. It is here contended that such-rulings constituted error.

That the evidence was inadmissible has been decided upon a former review of the same case. (Brown v. Sweet, supra.) The defendant did not attempt to amend his answer to conform to the evidence adduced upon the first trial, nor was a motion subsequently interposed, upon notice as allowed by section 473 of the Code of Civil Procedure, or otherwise, for the correction of mistakes or for amendment in other particulars. After more than five years had elapsed, the defendant for the first time tendered at the trial proposed amendments which would, if permitted, have presented new issues. Amendment in such a case is not a matter of right, and we are not disposed to hold that its denial in the instant ease was an abuse of judicial discretion. (Code Civ. Proc., sec. 473; Manha v. Union Fertilizer Co., 151 Cal. 581 [91 Pac. 393]; Brown v. Aguilar, 202 Cal. 143 [259 Pac. 735].)

The judgment is. affirmed.

Works, P. J., and Thompson (Ira F.), J., concurred.'  