Struthers v. McDowell

5 Neb. 491

• Court: Nebraska Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Lake, Ch. J.

The first error assigned is the overruling of the motion made to quash the summons. This point was not urged in argument, and we suppose it was abandoned. At all events, the objection to the sufficiency of this writ was not warranted, it being in all respects in strict conformity to the requirements of the statute.

The other objections all relate to the affidavit on which the order of attachment was issued; the chief of these being that no venue was given. It is also objected that the court erroneously permitted the notary public before whom the affidavit was made, to insert the proper venue, according to the fact, after a motion to quash the attachment had been filed, and thereupon overruled the motion.

It is not pretended that the facts set forth in the affidavit were not ample to justify the issuing of the writ, but it is insisted that the omission of the venue was a fatal defect; not amendable and rendering the order of attachment absolutely void. This position cannot be sustained. In the first place the venue is really no part of the affidavit, its office being simply to show by an inspection of the instrument whether it was made within the jurisdiction of the officer who administered the oath. Ve are not aware of a single case that goes so far as to hold that such a defect may not be amended, so as to show the fact, where the request to do so is properly made.

Under our statute of amendments great latitude is given to the court 'in permitting even material defects to be remedied, especially where they were occasioned by mistake, or are the result of oversight, and it can be seen that by so doing, substantial justice will be done. And this rule is not limited to pleading merely, but is applicable to all proceedings in civil actions. Irwin v. Bank of Bellfontaine, 6 Ohio State, 81; Campbell v. Whetstone, 4 Ill., 361; Langworthy v. Waters, 11 Iowa, 432; O'Dea v. Washington Co., 3 Neb., 118.

We are of opinion, therefore, that there is no error shown in the record, and the judgment of the court below must be affirmed.

Judgment affirmed.