Hersey v. Gegenheimer

COSHOW, J. The defendant bases his right to file an amended answer in order to conform the pleadings to the proof. There was neither proof of the law of Washington nor an allegation in the .amended answer tendered setting up the law of Washington upon which the defendant relied. There are two reasons why the Circuit Court properly denied the motion for permission to file the amended answer tendered. First, there was no evidence offered of the law of Washington relied upon by the defendant. Before an amended pleading tendered to make the pleading's conform to the proof can be allowed, there must be evidence of the fact the pleader claims to have proved. It is obvious that unless there was some evidence of the fact relied upon by the defendant he was not entitled to file an amended answer to conform to the proof. The defendant assumed that the automobile was community property under the law of Washington. There was no evidence of what the law of Washington is in that regard. Second, there is no allegation of what the law of Washington is in that behalf in the , answer tendered. Before the defendant would be permitted to introduce evidence of the statutory law of Washing *467 ton, he must have alleged what that law is. The courts of this state cannot take judicial notice of what the statutory law of another state is: Levine v. Levine, 95 Or. 94, 104 (187 Pac. 609); Rainey v. Rudd, 82 Or. 461, 464 (160 Pac. 1168); Scott v. Ford, 52 Or. 288, 294 (97 Pac. 99); De Vall v. De Vall, 57 Or. 128, 137, par. 8 (109 Pac. 755, 110 Pac. 705). For these reasons the judgment appealed from is affirmed. Affirmed. Burnett, Band and Belt, JJ., concur.