Hall v. Lackmond , 50 Ark. 113 ( 1887 )

CocKRitii, C. J.

The clerk of the Hempstead circuit court issued execution upon a judgment rendered in favor of the appellee, against the appellant., without attaching his seal of office to the writ. It was levied by the sheriff upon the appellant’s personal property, but upon application to the circuit judge and the execution of a bond under section 2988, Mansefild’s Digest, proceedings under the execution were stayed until the next term of the circuit court, when upon the motion of the appelle, the clerk was required to affix his seal, and the appellant’s application to quash the writ was thereupon denied. v

The argument of the appellant is that inasmuch as his proceeding is a direct attack upon the writ, the court ■erred in refusing to quash it; and to sustain the position, he cites the early cases in our reports where writs without seal were declared nullities.

1. Executions: May be amended by affixing seal. As early as Whiting v. Beebe, 12 Ark., 421, and Mitchell v. Conley, 13 Id. 414, the error of the early cases was made manifest, and the inherent power of the courts to amend their writs, both original and judicial, when defective only in the want of a seal or other matter of form, was declared. The doctrine of these cases has been often reiterated, both in direct and collateral attacks upon writs. Kahn v. Kuhn, 44 Ark., 404; Rice, Stix & Co. v. Dale & Richardson, 45 Ark, 34; Jett v. Shinn, 47 Id., 373, and cases cited therein.

2. Same: Power to amend not affected by bond to stay proceedings under. The argument that the amendment cannot have tion to the date of the writ, because the sureties in bond to stay the execution will be injuriously affected, without foundation. The fact that the writ is capable 0f amendment shows that it is not void, but that'the defect is cured by relation to its date [Sannoner v. Jacobson, 47 Ark., 31], and “ it has been held upon full consideration that the courts have power to amend their process and records notwithstanding such amendment may affect existing rights." Tilton v. Cofeld, 93 U. S., 163, quoted in Sannoner v. Jacobson, supra. But what rights have the sureties in the injunction bond that are affected by the amendment? They knew, or are presumed to have known, that if they did not lend their aid in interfering with the execution' of the writ, it would prove effective to the plaintiff- in the execution in holding the property levied upon ; and they executed the bond with the knowledge that the court might, if a proper case was presented, exercise its power of amendment. Tbe execution of a bon'd' by them could not defeat the power. The appellant has only to return to the sheriff the property released by the bond to relieve his solicitude-"about his sureties.

3. Same: Costs on refusiong application to quash. It is contended that the costs of the application to the writs should have' been • adjuagéd against the plaintifi in the execution, when the amendment was-made. The court may impose terms when it sees fit upon the allowance of an amendment. It declined, in this case, to do so. It was the fault of the clerk and not of the appellee, that the seal was not attached to the writ,, and the court might have caused the amendment without waiting for the suggestion to come from the appel-lee. Kahn v. Kuhn, supra. The defect did .not affect any substantial right of the appellant; the stay of the execution was unnecessary and was for his benefit, and it was not an abuse of discretion to adjudge the costs against him.

Affirmed.