Gillespie v. Davis ( 1833 )

Peck, J.

delivered the opinion of the court.

It is not deemed material to notice any point raised in this cause, except that upon the motion for a new trial, in order to enable the defendant to amend by adding a plea in bar; that after the judgment had been rendered in the State of Virginia, it had remained ten years without any fien facias having been sued out; and that the same had not been revived by scire facias. We are all of opinion, that after verdict and judgment, the motion comes too late, especially where, from any thing that does appear, there were no merits on the part of the defendant; the affidavits not disclosing any grounds but the oversight of counsel. Amendments may be allowed at any time to reach the merits and to attain justice; but we cannot presume otherwise in the case before us, than that justice had been done by the finding, and consequent judgment of the court. It is not pretended that the judgment had been satisfied, or that the plaintiffs were not within the savings in the statute of Virginia relied upon. To have allowed the amendment, would have been affording to the defendant a mere technical objection. Whether it would have availed the’ party applying, any thing, must be reserved until the question, in direct form, shall be presented.

Judgment affirmed.