Diettrich v. Wolffsohn

136 Mass. 335, 1884 Mass. LEXIS 100

• Court: Massachusetts Supreme Judicial Court
• Decided: January 5, 1884
• Status: Published

Opinion

Colburn, J.

The amendment was properly allowed. Pub. Sts. c. 167, §§ 41, 42. Crafts v. Sikes, 4 Gray, 194. No new party or new cause of action was introduced. The amendment was merely the correction of a clerical omission, and did not vacate the attachment so as to give the plaintiff’s mortgage priority to it. Haven v. Snow, 14 Pick. 28. Wight v. Hale,. 2 Cush. 486. Cain v. Rockwell, 132 Mass. 193.

The plaintiff is apparently in the same condition he would have been in if Robinson’s name had been correctly stated in full in the writ. At the time he took his mortgage, the mortgaged property was in the custody of the officer, under the attachment; but the plaintiff was ignorant of this fact, and, so far as he shows, would have been equally ignorant, if there had been no error in the name of the defendant in the writ; and this distinguishes the case at bar from that of Terry v. Sisson, 125 Mass. 560, upon which the plaintiff relies.

If the Pub. Sts. c. 167, § 85, can be held to apply to an amendment of a mere clerical error, the only effect of the omission to give the present plaintiff notice of the application for leave to amend, in the manner provided for in that section of the statute, is, that he is not precluded from the right to contest the effect of the amendment in the present action.

Judgment for the defendant.