Barker v. Norton , 17 Me. 416 ( 1840 )

The opinion was drawn up by

Weston C. J.

The time, when the defendant is to appear, is to be clearly and distinctly stated in the process. And if it is not, his failure to appear, does not justify any legal conclusion against him. Bell v. Austin & al. 13 Pick. 90. And it was there held, that in such case, the error cannot be cured by amendment. If, however, the defendant do appear, and interposes no objection to the regularity of process, the purpose of which is to bring him into court, it would seem not unreasonable to hold him to have waived the exception.

But however that may be, we think the error may be amended, after appearance and after a general imparlance. There is something to amend by. The time of holding the court, next after the date of the writ, is fixed by law; and if there is a misrecital of the time, and the defendant is not deceived or misled, but appears at the next court and there is a continuance, without any saving of exceptions, we are of opinion, that the error may be corrected. In the case cited, although the Court held it improper to amend, the defendant not having appeared, yet they say, “ where the parties are before the Court, there seems to be no danger in giving to Courts great latitude of discretion, in the allowance of amendments.”

Amendment allowed.