Near v. Van Alstyne — 14 Wend. 230

Majority

p. 230

Near vs. A. M. & L. Van Alstyne.

ALBANY,

October, 1835.

Headnote

It is competent to a. justice to amend an attachment issued by him, by inserting after the return of the process the amount of the debt sworn to by the applicant.

Error from the Madison common pleas. Near commenced a suit by attachment against the defendants. On the return day of the process, the defendants appeared and objected that the amount of the debt sworn to by the applicant was not stated in the attachment, 2 R. S. 230, § 30, and prayed that the suit abate. The justice, instead of granting the motion, amended the process by inserting the words fifty dollars as the sum sworn to, and proceeded to hear the proofs of the plaintiff, (the defendant refusing to appear,) and rendered judgment in favor of the plaintiff. The common pleas of Madison, on certiorari, reversed the justice’s judgment. The plaintiff sued out a writ of error.

S. Chapman, for plaintiff in error.

J. Benedict, for defendant in error.

By the Court,

By the construction given by this court, in Brace v. Benson, 10 Wendell, 214, to the revised statutes, 2 R. S. 424, 5, and 225, it was held that justices have the power of amendment, in the same manner as courts of record before judgment. The amendment made by the justice was clearly such an one as it became his right and duty to make. The provision requiring process to be filled up before issuing, 2 R. S. 267, § 233, was intended to guard against the abuse which at one time was but too common. Justices put blank process into the hands of constables and others, to be filled up by them as they saw fit, in the same manner as attornies in courts of record issue process. To such cases the statute is applicable, but does not interfere with

p. 231

the power of amendment in clerical mistakes, in process issued properly by the justice himself.

The common pleas erred, and the judgment must be reversed.

Judgment reversed.