Shepherd v. Jackson

82 Mass. 599

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1860
• Status: Published

Opinion

Chapman, J.

The officer’s return is the only competent evidence to prove the service of notice on the plaintiff. Park v. Johnston, 7 Cush. 265. In this case, the return does not show a sufficient notice, unless the amendment was legally made nearly a year after the-service. An amendment showing any part of the return to be actually false, and for the purpose of defeating it, would not be allowable. Davis v. Putnam, 5 Gray, 321. But great liberality is exercised in allowing amendments to supply omissions, or to correct palpable errors, for the purpose of sustaining proceedings when the justice of the case requires it.

In Johnson v. Day, 17 Pick. 106, the writ was dated November 4th 1833, and judgment was rendered in June 1834. The execution was levied upon real estate which had been attached on mesne process. The officer had by mistake stated in his return the date of the attachment as November 4th 1834; and a mortgagee, whose mortgage was made just before the attachment, but recorded several days afterwards, brought a writ of entry against the judgment creditor to recover the land. During the pendency of this suit, the officer was allowed to amend his return by correcting the date as to the year, and thus the action was defeated. Wilde, J. says: “ Amendments of this description are not regulated by any certain rules; but the court is bound in every case to exercise a sound discretion, and to allow or disallow an amendment as may best tend to the furtherance of justice.” He cites with approbation Haven v. Snow, 14 Pick. 28, where an officer was allowed to amend his return, the effect of which was to defeat a title in a third party, which without such amendment would have been valid. In Chase v. Merrimack Bank, 19 Pick. 564, an amendment of a return upon an execution was allowed after the matter had come into litigation in another suit, and its effect was to defeat the action. In Thatcher v. Miller, 11 Mass. 413, and 13 Mass. 270, it was held that courts have discretionary power to allow amendments of a return, even after the lapse of six years and the suing out of a writ of error. The amendment in that case was not allowed by the court of common pleas, where the return was made, and it was held to be a subject within the discretion of that court.

There are many cases in the books where the matter has been discussed, and amendments allowed or refused. It would be difficult to gather from them any precise limit to the power of the court; and the rule by which its discretion is to be guided is nowhere better stated than by Mr. Justice Wilde in the language above cited.

In the present case, it appears that the amendment allowed by the master was according to the truth. Its purpose was to sustain the proceedings, and save the sureties of a poor debtor from being compelled to pay the debt after he had, upon a proper notice to the creditor, taken the poor debtor’s oath ; and the only defect was an omission to state in the return the place where the service was made. We think the amendment was properly made. The proceeding is thus proved to be regular, and this action cannot be maintained.

Judgment for the defendants.