Dexter v. Hoover — 2 Cow. 526

Majority

p. 526

Dexter against Hoover.

Headnote

causel6inf the court ^below in the certiora?, a?d the which it was grounded.

On certiorari to' a Justice’s Court. Jacob I. Hoover rnipleaded. Dexter before a Justice, and obtained judgment against him. Dexter employed an attorney to prosecute a certiorari to this Court, who, by mistake, drew the affidavit and certiorari in the name of James S. Hoover, instead of the true name, Jacob I. Hoover ; and on the certiorari being served upon the Justice, he told the plaintiff’s attorney, that he should return that there was no such cause before him as that described in the papers; and a motion was now made to amend the title of the affidavit and writ so as to make them agree with the proceedings below, in the name of Hoover.

O. G. Otis, for the motion,

cited 1 Sellon’s Pr. 98, 99. Stevenson v. Donovas, (2 B. & P. 119,) Mestaer v. Hertz, (3 M. & S. 450.)

G. H. Feeter and N. S. Benton, contra.

Let the plaintiff make a supplementary affidavit in the true cause, stating the same facts as are contained in the original affidavit; let the writ be amended and a copy of the supplemental affidavit be served on the Justice, who must return thereto, as if it were an original affidavit. But the amendment must be on payment of costs.

Rule accordingly.