Dennison v. Willson

16 N.H. 496

• Court: Superior Court of New Hampshire
• Decided: January 15, 1845
• Status: Published

Opinion

Woods, J.

This is a writ of error brought to reverse a judgment rendered upon default against the plaintiff in error in favor of the defendant. The error assigned is a defect in the service of the writ.

The action in which the judgment was rendered was scire facias against Dennison, as bail of one William Dennison, against whom the defendant in error had recovered a judgment in a former suit. In that suit Mr. Young had appeared as the attorney of record to William Dennison.

The service of the writ of scire facias was made by Ephraim Cross, a deputy of the sheriff of the county of Coos, by reading the same to Mr. Young within his precinct, and by giving a copy of the writ and of his return to the defendant, the plaintiff in error, in Guildhall in the State of Vermont.

It is provided by the Rev. Stat., chap. 183, sec. 7, that “ writs ‘of review and of scire facias may be served, in case the defendant therein is not an inhabitant of this State, on the attorney who appeared for such defendant in the original action, or by giving to such defendant a copy of such writ, and affidavit made thereof.”

Several classes of cases are provided for in this section; writs of review and writs of scire facias, as well against parties to former actions as against others. In some of these cases the service may be made at the option of the party making it, or according to the circumstances of the case, cither upon the defendant himself or upon the person who appeared as his attorney of record. In the other cases, the service must be made upon the party himself, for the plain reason that not having previously been in court, there can be no attorney of record on whom service may be made.

Such is the present ease. Mr. Young was the attorney of the defendant in the original suit, in which the defendant in the scire facias was bail, but was in no sense the attorney of the bail, so as to authorize the service of the writ to be made upon him. The only mode of service therefore provided by the statute, is the personal service upon the defendant himself.

This was made in direct conformity with the requirement of the statute by tbe officer, Cross, and a minute made on the back of tbe writ to that effect, and tbe writ was in that condition returned to tbe court of common pleas. So far as tbe officer proceeded in tbe service, be proceeded coi’rcctly; and all that was required was tbe step which the statute bad pointed out as tbe means of establishing tbe evidence of what be bad done, tbe act of service having been performed without -bis precinct and therefore not having been official.

If nothing more bad been done, tbe return would have been incompetent and insufficient, and tbe judgment rendered upon default without any appearance on tbe part of tbe defendant in tbe suit, would have been erroneous in consequence.

But afterward tbe officer did that which, if it was seasonably done, perfected bis return, by making tbe evidence of tbe service complete, and thereby cured tbe error.

Tbe principal question is whether such an amendment was within tbe discretion of tbe court of common pleas to grant.

In general the court will permit an officer to amend bis return after a long time has elapsed, provided sufficient material (such as minutes made at tbe time) exist, from which be may make tbe desired amendment. Johnson v. Day, 17 Pick. 106; Hovey v. Wait, do. 196; Baxter v. Bice, 21 do. 197; Chase v. Merrimack Bank, 19 do. 564; Haven v. Snow, 14 do. 28; Whittier v. Varney, 10 N. H. 301; Gibson v. Bailey, 9 do. 168.

Nor is tbe bringing of a writ of error for tbe purpose of reversing tbe judgment, upon tbe ground of tbe imperfection of tbe return, any impediment to granting such leave.

A verdict may be amended by tbe judge’s notes after error brought and joinder. Clark v. Lamb, 8 Pick. 415. In tbe opinion of tbe court in that case as delivered by Mr. Justice Wilde, the cases are examined, and tbe conclusion adopted, that such amendments, moved within a reasonable time, are sanctioned by ancient usage of the courts in England as well as in that State, and by obvious considerations of justice.

In Dickinson v. Plaisted, 7 T. R. 474, leave to amend the record was granted after writ of error brought, although the pendency of the writ was insisted on. “ The lateness of the application,” the court said, “was no objection, since nothing was more common than an application to the court of chancery to grant an original, after the want of an original had been assigned for error.”

A similar determination was had in 1 Watts & Serg. 365, in which the declaration was held to bo amendable after error brought.

The principle of these cases is, that an amendment that may in general be granted, in conformity with the practice of the court, before the bringing of the writ of error, may be granted at any time before the judgment is actually reversed on error. The accruing of the rights of third parties does not ordinarily affect the right to amend. Whittier v. Varney, 10 N. H. 301. And whoever founds his claim upon an error in the proceedings of public officers or others, speculates upon the contingency of an amendment being made that shall defeat Ms claim.

In Tillotson v. Chatham, 3 Johns. 95, it was also held, upon an examination of the authorities, that an amendment might be granted after writ of error brought, and the practice was commended by the court as conducive to the ends of justice.

The granting of the ameiidment in this case was within the discretion of the court where the record lay. The writ of error does not remove the record to this court, but a copy only is brought up. This practice was settled in the case of Rowell v. Bruce, 5 N. H. 381, and it was expressly decided there, that the application for leave to amend could be made only to the court below.

We have no doubt therefore that the amendment made by leave of the court below, was made in perfect conformity with the law. Having been made, the record is, by relation of the act, good from its inception, and consequently the judgment must be for the defendant in error.

Hpon the question of costs, in Tillotson v. Chatham, 8 Johns. 95, the terms of granting the amendment were payment of costs of the application, and if the writ of error be discontinued or nonprossed in consequence of the amendment, upon payment of costs in error.

Judgment affirmed.