Wight v. Hale , 56 Mass. 486 ( 1848 )

Wilde, J.

The principal question to be decided in this case is, whether the plaintiffs’ attachment of the demanded premises, in their action against Charles B. Wilmarth, was dissolved by the amendment of the writ in that case.

That the court were not only authorized, but required, to allow that amendment, cannot admit of a doubt. By the Rev. Sts. c. 100, <§> 21, it is enacted, “ that no writ, process, declaration, or other proceeding in the courts, or course of justice, shall be abated, arrested, quashed or reversed, for any circumstantial errors or mistakes, when the person and case may be rightly understood by the court.” And bj' the twenty-fourth section it is further enacted, that no judgment shall be reversed for any defect or imperfection in matter of form, which might by law have been amended. And by the Si. of 1839, c. 151, <§> 1, it is provided, that amendments, not material to the merits of the case, and by which the opposite party cannot be prejudiced, may be allowed without payment of costs. It has been argued for the defendant, that by the amendment a new plaintiff and a new firm were introduced; but we think it clear, that such was not the effect of the amendment. The effect was properly to correct a clerical mistake, which had occurred by the misnomer of one of the plaintiffs; and it is quite clear, that such a mistake may be corrected by an amendment.

But it has been argued by the defendant’s counsel, that however this may be, the amendment cannot defeat the intervening title, acquired by the party under whom the tenant claims, before the amendment. On this point several cases have been cited; but the decisions in those cases are not applicable to the amendment in this case. In Putnam v. Hall, 3 Pick. 445, the officer was directed to attach the defendant’s property to the amount of six dollars, and by the amendment it was altered to six hundred dollars, and that was held to be a material alteration. In the case of Denny v. Ward, 3 Pick. 199, a new party was introduced by the amendment. And in Emerson v. Upton, 9 Pick. 167, the amendment was in the officer’s return ; and the grounds of the decision have little or no bearing on the amendments of writs, none certainly as to mere amendments of form. But it was said in that case by Parker, C. J., “ that it will be found, on examination of the cases in which amendments have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit in which the amendment has been granted.” But in Haven v. Snow, 14 Pick. 28, it is said that this remark requires some explanation. “ It must not be inferred therefrom,” it is said, “ that all amendments are to be thus limited ; for it is clear, we think, that amendments in form merely will not dissolve an attachment, so as to let in subsequently attaching creditors, or discharge bail. To have this effect, the amendment must be such as to let in some new demand or new cause of action.”

This distinction seems to us to be well founded, and it is decisive in the present case. The misnomer was a mere mistake ; the name of one of the plaintiffs was written Wright, instead of Wight, as it should have been ; but the other plaintiff, Brown, was rightly named and described, and they sued as copartners on a note payable to Wight & Brown. It was competent, therefore, for them to prove that Brown’s partner was named Wight, and not Wright, and thus to verify the fact that no new party or new demand was introduced by the amendment. The mistake, therefore, was not material to the merits of the case ; nor was the amendment prejudicial! to the defendant, within the meaning of the St. 1839, c. 151, *

It is objected, that the defendant, or his grantee of the estate attached, should have been notified of the motion to amend ; but the defendant had appeared, and, after the suit had been continued from term to term for several terms, he was defaulted. He had an opportunity, therefore, to take advantage of the mistake, if any advantage could be taken; and this he waived by his default.

As to notice to his grantee, it does not appear that the plaintiffs had any notice of the grant; but if they had notice, it would be immaterial, for the grantee could have made no valid objection to the amendment. If any such objection could have been made, the defendant might avail himself of it in the present action.

As to the objection made to the partition, that is not open for consideration on this report, but may be made on the new trial.

New trial granted.