Thurber Whyland Co. v. Klittner

Headnote

Pleading—Power of court to amend process.

This action was brought to recover for goods sold by plaintiff’s assignor, Thurber, Whyland & Co. The summons was entitled Thurber, Whyland & Co. v. Prank Klittner. This error was not discovered until judgment was entered. Held, that it was a clerical error, which could be corrected on motion.

Appeal from order of the county judge of Westchester county, affirming an order made by the city judge of Yonkers, permitting the respondent to amend the summons after the entry of judgment in an action in which The Thurber Whyland Company was plaintiff and Frank Klittner was defendant.

This was an action brought by the respondent against the appellant, in the city court of Yonkers, to recover the sum of eighty-five 97-100 dollars for goods sold and delivered by its assignor, Thurber, Whyland & Co. The summons and notice in the action was duly served upon the defendant and was entitled “ Thurber, Whyland & Co. v. Frank Klittner.” Before defendant’s time to appear or answer had expired, he called upon plaintiff’s attorneys, admitted the indebtedness, and said that plaintiff could prosecute his suit, as defendant had nothing that plaintiff could reach. When defendant’s time to appear or answer had expired, plaintiff’s attorneys prepared the judgment-roll and in doing so discovered that the summons, instead of being entitled “ Thurber, Whyland & Co.,” as plaintiff, should have been entitled “The Thurber Whyland Company,” the mistake being a clerical error. The complaint was then properly entitled “ The Thurber Whyland Company,” plaintiff, against Frank Klittner, defendant, and judgment entered thereon, defendant not having appeared or answered. Execution was then issued to the sheriff and returned wholly unsatisfied. Proceedings supplementary to execution were thereupon instituted by respondent, and an order requiring the defendant to attend and be examined was duly served upon him and he appeared before the city judge of Yonkers in company with his-counsel, and was duly sworn. Defendant's attorney and defendant himself then admitted the indebtedness in open court, asked for time to pay the amount of the judgment, and requested plaintiff’s attorneys to adjourn said supplementary examination for one week, and they consented. On this request, consent, and promise to pay, all of which were indorsed on said supplementary order, the said city judge of Yonkers made an order adjourning the examination of defendant for one week. Before the return day as set by the order of adjournment, said defendant’s attorney, acting as attorney for a person not a party to the action, had this appellant confess judgment to the third party, and said third party sold out defendant’s store and applied the proceeds to the payment of his judgment At this stage of the proceedings, the appellant through his said attorney moved to set aside plaintiff’s judgment in

the action, on the ground that the summons served upon the defendant was at variance with the complaint, and that the judgment was irregular. At the same time plaintiff moved to amend the summons to conform to the complaint and judgment. From an order made by the city judge of Yonkers, granting plaintiff’s motion and denying defendant’s motion, this appeal is taken.