Jarbee v. Steamboat Daniel Hillman , 19 Mo. 141 ( 1853 )

Gamble, Judge,

delivered the opinion of the court.

The plaintiffs filed their petition against the Daniel Hillman, and on that petition, the clerk issued a warrant in the name of Belt alone. The boat was seized and sold, and some of the creditors proved their claims, when a motion was made to set aside the order of sale and all proceedings, for the alleged irregularity in the writ, in being in the name of only one of the plaintiffs. The court overruled the motion and the plaintiffs excepted, and bring the case here.

1. The case of Jones v. Cox and others, 7 Mo. Rep. 173, presented the same question on a motion to quash a writ, and there it was held, that such defect was amendable, and the motion properly overruled. It is said in that case : “ If a variance between the declaration and writ can be taken advantage of at all, it is not seen upon what principle the party can avail himself of it on a motion to quash. According to our practice, the declaration is filed before the writ issues,, and the declaration being the foundation of the writ, and accompanying it, the party would look to it in order to ascertain the nature of the demand, and by whom the suit was instituted. A variance between it and the summons cannot mislead him.” If an actual amendment of the writ were necessary, we would send the case back, with directions to allow it to be amended, but as the actual insertion of the name of Jarbee in the writ would be of no importance, when it appears in the petition upon which the writ issued, the judgment is, with the concurrence of the other-judges, affirmed.