Majority
p. 105The People, on the relation of J. Houston, vs. Monroe C. P.
Headnote
Where a suit is commenced by the filing and service of a declaration, such declaration may be amended as of course, the same as if filed after process.Motion for a mandamus. A suit was commenced against the relator in the Monroe common pleas by the filing and service of a declaration pursuant to the revised statutes. The defendant demurred to the declaration, and the plaintiffs in the suit entered a rule to amend, amended their declaration, and served a copy of the same on the defendant. The amendment was made under a rule of that court, similar to the rule of this court allowing an amendment of course, and without costs, at any time before the default for not joining in demurrer is entered, where there is a demurrer to the declaration. The relator moved the common pleas to vacate the rule to amend, and to set aside the amended declaration ; which motion was refused by the common pleas. The relator asked for a mandamus to correct the supposed error of the common pleas, on the ground that a declaration thus filed, being in the nature of process, was not amendable. /
S. B. Jewell, for the relator.
By the Court,
The rule of this court allowing amendments as of course is genera/, making no distinction between a declaration filed after process and a declaration filed pursuant to the statute. Although the latter is the commencement of the suit, and thus in the nature of process, it is not process. It was suggested, when the motion was heard, that an undue advantage might be taken of a defendant if a plaintiff who had proceeded under the statute was permitted to amend his declaration ; for being served with a declaration in which the cause of action was truly alleged, a defendant might suffer a default, and the plaintiff might obtain a recovery for a different cause of action then that de- ■
p. 106
scribed in the declaration served on the defendant. This could not be done without apprizing the defendant, for the rule provides for amendments of declarations only after plea or demurrer; and if there is an appearance, a copy of' the amended declaration must be served. However, if inconvenience or injustice should grow out of the practice, it can readily be remedied. The rule of the common pleas being similar to the rule of this court, the court decided correctly in denying the motion.
Mandamus denied.