State v. Jessup & Moore Paper Co.

78 A. 295, 25 Del. 116, 2 Boyce 116, 1910 Del. LEXIS 79

Opinions

Pennewill, C. J.

delivering the opinion of the court:

The application is for leave to amend the alternative writ, the petition having been heretofore amended by leave of court. Objection is not made by the respondent to the amendment, as we understand, butit is insisted that when amended the writ should be reissued and served, so that the respondent may have further time to make a new return to such amended writ. This, it is contended, would be the proper practice in such cases.

While the course suggested by the respondent may seem logical and proper, it does seem to us to be unnecessary. The petition is the foundation of the action, and when that is amended it is obvious that the alternative writ, which must conform to the petition, should be likewise amended, just as any pleading in a cause and with like effect. And if the return has at the time been filed, leave should be given to amend the same.

We think the question presented was passed upon by this court in Kent county in the case of State ex rel Allee, et al., v. McCoy, et al., 2 Man., 465, 503, 36 Atl. 355. In that case, after the several returns had been read and filed, Walter H. Hayes, for the relators, moved for leave to amend the petition, the order for the rule to show cause, and the alternative writ, by adding to the enumeration of parties respondent, where they were mentioned, as such, in each of said papers, -the words: ‘ ‘And Samuel L. Shaw, sheriff of said county of Kent, constituting the board of canvass for said county of Kent. ”

Chief Justice Lore, speaking for a majority of the court, said: “We think the amendment ought to be allowed. Let it be made.”