GEORGE RIDDELL, Appellant, v. JOHN MULLAN et al., Respondents, 77 Cal. 577

Foote, C. This was an action to determine which of the parties thereto had the better right to purchase from the state the lands described in the plaintiff’s application, being the south half of

section 15, township 1 south, range 7 west, Ban Bernardino meridian. A general demurrer that the amended complaint did not state facts sufficient to constitute a cause of action was filed and sustained; the plaintiff asked leave to amend, but it was refused; a trial was had, and judgment rendered in favor of Mullan, one of the defendants, upon proof made under the answer which he had filed. This appeal is taken from that judgment by the plaintiff. We think that as against a general demurrer the corm plaint sufficiently averred that an order of reference had been made.

Conceding, without deciding, that the complaint should have averred that a demand-for an order of-reference had been made by the plaintiff, and the time when such demand was made, so as to show that he had complied with the provisions of

section 3498 of the Political Code, as amended March 14, 1885, nevertheless the offer to amend in that particular, made by the plaintiff, should have been allowed. It is seldom the case that the appellate court will interfere with the action of the court below in such a matter, but in this case a wise discretion would have been exercised in granting the plaintiff’s request, and no detriment would have accrued to any of the parties. We advise that the judgment be reversed and the cause remanded for further proceedings. Belcher, 0. 0., and Hayne, C., concurred. The Court. For the reasons given in the foregoing opinion, the judgment is reversed, and cause remanded for further proceedings.