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(431) Adidavit to obtain order

amending as to names, etc.,
in summons, or in sum-

mons and complaint.
(432) Notice of motion for order

amending summons, or sum

mons and complaint.
(433) Order amending summons, or

summons and complaint, as
to names, etc.

(434) Affidavit to obtain order

amending sumnions and complaint by inserting name of defenuant who should have been originally made

a party. (435) Order guing leave to issue

supplemental summons, with leave also to amend sum

mons and complaint. (436) Supplemental summons.

I. AJENDING SUMMONS.— IN GENERAL. 1. Without leare.] — Under the New York statute, br which the summons is in forn a notice issued by the attorney, not by the court or clerk, the attorney may of course alter it at any time before he has actually issued it; that is to say, before it has been served or filed, or any application to the court has been made upun it, or delivery made to an officer, with the effect to save the statute of limitations or otherwise to effect actual commencement of the action.

In contemplation of law such an alteration by the attorner is not an amendment, but only a correction of his draft of an intended summons.

A process-server, to whom a summons has been given for service, has not power thus to alter it ;16 but a managing clerk bas implied authority to make any such correction that his principal might. 17

2. Leare.] —After summons has once been issued it can regularly be amended only by leave of court.18 If a defendant irpeaching the validity of an amendment made without leave does not appear to have been misled, but rests solely on the technical objection, notwithstanding having had full notice of all that the process should have expressed, the court may properly allow amendment to be made to meet a motion founded on the lack of leave. 19

16 McAdam, J., in Commissioners of Charities, etc., 0. Litzen, N, Y. Daily Reg., Sept. 24, 1881 (setting aside summons because so altered).

17 Dictum in same case.

18 Mapes 1. Brown, 14 Abb. N. C. 94; N. Y. Code Civ. Pro., 727, and paragraph 10, post; McCrane t'. Moulton, 3 Sandf, 736 (holding that summons is not pleading, but when issued is process) ; s. P., 18 Abb. N. C. 199. 200: Chase v. Dunham, 1 Paige, 572; Russell v. Spear, 5 How. Pr. 142.

19 Sears r. Sears, 9 Civ. Pro. Rep. (Browne) 432 (allowing the correction of the omission to write on the copy of a summons in divorce, statement that

The objection that an amendment has been made without leave is waived by not returning the paper when served or making prompt objection.

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3. Power of Court.] — The power of the court in respect to allowing amendment is as broad as the requirements of justice ; 21 and the restrictions imposed upon its exercise in practice are chiefly those necessary to discourage careless practice, and prevent the useless vexation of defendants.22

4. Mode.] — If the defect is in the original summons, that is to say, in the paper filed or to be filed as forming part of the record, the application should be for leave to amend the summons or to file and serve an amended summons. If the defect be merely

the action was for divorce. Andrews, J., well said: 'Upon familiar principles sections 723 and 1774 [N. Y, Code Civ. Pro.] must be read together, and, if possible, effect must be given to all the provisions of both, and it seems to me that the provision of the latter, that judgment shall not be rendered unless the copy summons served contains certain words upon its face, is not necessarily inconsistent with those of the former, which confer upon the court a general power to amend process. Upon the evidence before me, I must hold that the words 'action for a divorce' were written upon the face of the original summons in this action, and that, through inadvertence, such words did not appear upon the face of the copy served, and that the motion for leave to now serve a copy containing those words should be granted on payment of $10 costs”).

20 Mapes 1. Brown, 14 Abb. N. C. 94 (holding that retaining the amended summons a week precluded objection).

In Davenport v. Russell, 2 Code Rep. 82 (an amended summons served without leave and before answer, to cure an informality, was sustained where defendant was not prejudiced).

21 See the statute of amendments. The New York statute is N. Y. Code Civ. Pro., & 723.

22 Daniels, J., well said in Getty 1. Spaulding, 3 Supm. Ct. (T. & C.) 174 (mem. s. c., 1 Hun, 115, aff’d, 58 N. Y. 636): This authority to supply an omission in any proceeding, and to insert other allegations material to the cause, is as broad as the nature of any mistake or omission may require for their correction. It is qualified by no restriction beyond the requirements that it must be in furtherance of justice, and on such terms as may be proper. Subject to these considerations, the court is endowed with complete power of action.”

So far as this case holds that the court have not the same power on the trial as on special motion, it is superseded by N. Y. Code Civ. Pro., 723, which gives the power upon the trial or at any other stage of the action before or after judgment.”

In Boyne v. Prentis, 47 Mich. 124, 10 N. W. Rep. 136, where two writs of summons were simultaneously issued in the same case by the same clerk, tested in name of different judges, held, that the plaintiff in error, in a record that exhibited them only as allied proceedings in one case, could not claim that they began two distinct suits, if only one was practically instituted. And the defect in procedure is within the statute of amendments.

in an incorrect copy, delivered to the defendant in attempting to make service of a correct summons, the application, if necessary, will be for leave to serve a correct copy.

After judgment, when the purpose of the summons has been accomplished, amendments are made directly by order that the summons be amended. Any amendment which is made to enable the summons to accomplish its purpose, is made by granting leave to file and serve an amended summons.

5. Promptness.] — Delay to ask leave to amend is not necessarily fatal, but terms should be imposed if necessary to prevent the defendant from being prejudiced by the delay.23

6. Notice.] — In theory, a defendant who has appeared is entitled to notice of motion to amend the summons, 24 and a defendant who has been served and has not appeared cannot be proceeded against by an amended summons not served on him, if the object of the amendment was to charge or affect him differently from the original summons.

In practice, the question whether the amendment is one that can affect any substantial right, is considered; and an amendment allowed without notice cannot generally be impeached by one who was not actually or presumptively prejudiced by not har. ing notice. 26 IIence formal amendments, not affecting the sufficiency or effect of the summons or process, as against a given party, are often allowed without notice to such party.26

7. What defects amendable.— In general.] The omission to name any court in the summons is fatal to a judgment founded upon the service of it27 (unless it can be supplied by reference

23 McElwain 1. Corning, 12 Abb. Pr. 16. Here defendants being sued as administrators, had paid over the greater part of the moneys of the estate, supposing the claim barred by statute, plaintiff was required, as a condition of leave to amend summons after two years' delay to serve complaint, to stipulate not to collect in the action more than remained in their hands.

24 Hewitt v. Howell, 8 How. Pr. 346, 347, dictum.

25 See paragraphs 8 and 10 (below). Farmers' Nat. Bank v. Williams, 9 Civ. Pro. Rep. 212.

26 Stuyvesant 1. Weil, 167 N. Y. 421 (an ex parte amendment to correct name upheld, made against a defendant in default, who was properly served in an action to foreclose a mortgage upon property of which she was owner).

27 Ward 1. Stringham, 1 Code Rep. 118 (leave to insert name of court omitted in both summons and complaint denied).

James ". Kirkpatrick, 5 How. Pr. 241 (motion to set aside judgment for irregularity granted, with leave to amend summons and serve complaint anew).

to the complaint duly served, so that defendant cannot complain of being misled28); and amendment, if allowable at all, must be by serving an amended summons.29 A mere omission to name the county of trial when the court is named, is amendable.30 Amendment in names of parties is considered in detail below.

Errors in omitting to state the place of filing in the complaint, or in referring to the summons as annexed when it is not,31 or in respect to the time to answer,32 the amount demanded, 33 the name of attorney subscribed,34 etc., are also amendable.

Such detects may be disregarded after judgment35 even wheri entered upon defendant's default.86

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8. Practice.] — The application is made to the court, not to a judge, and on affidavit and on the original summons, usually including also the subsequent proceedings, if any, especially if desired to amend them. The moving papers are entitled in the cause, even though a party named in the title be dead, in which case the effect of the order amending initiates the change of title in subsequent proceedings.

A motion to set aside a summons may be met by a countermotion to amend it, or for leave, nunc pro tunc, so as to sustain an amended summons served without leave, and such relief may be granted without a cross-motion, on the hearing of a motion to set aside, if the facts are all before the court, and defendant is not prejudiced by having no notice of the request for leave to amend.

28 Walker v. Hubbard, 4 How. Pr. 154 (motion to set aside summons granted, with leave to amend, where title of cause in complaint sufficiently named the court).

29 James r. Kirkpatrick, 5 How. Pr. 241.

30 Wallace v. Dimmick, 24 Hun, 635; Thomson v. Tilden, 24 Misc. 513, 53 N. Y. Supp. 920.

31 Foster 1. Wood, 1 Abb. Pr. (N. S.) 150, 30 How. Pr. 284; Keeler t. Belts, 3 Code Rep. 183.

32 Where the summons erroneously specifies the time within which an ansirer must be served, the error is not jurisdictional, but a mere irregu. larity, and amendable. Gribbon 1. Freel, 93 N. Y. 93.

33 Deane v. O'Brien, 13 Abb. Pr. ll. 34 Hull 1. Canandaigua El. L. Co., 55 App. Div. 419, 66 N. Y. Supr. 865 ; Weare v. Slocum, 1 Code Rep. 105; s. c., as Weir v. Slocum, 3 How. Pr. 397; Sluyter v. Smith, 2 Bosw. 673. So as to omission to add office or post office address. Wiggins v. Richmond, 58 How. Pr. 376.

So, also, of clerk's signature. Austin v. Lamar Fire Ins. Co., 108 Mass. 338. 35 N. Y. Code Civ. Pro., 8 721. 36 Hull v. Canandaigua El. L. Co., supra.

37 But entitling the papers as a petition "in the matter of,” etc., does not vitiate if it has not misled. Matter of Gannon, N. Y. Daily Reg., July 30,

II. MENDING, ETC., IN RESPECT TO PARTIES.38 9. Power of the court. ]— The power of chancery to bring in any persons necessary to a complete determination of the controversy has been re-enacted in the New York statute," and the power is a part of the general power of amendment in furtherance of justice.

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10. The practice; leave and notice.]—After an action has heen once commenced, there can be no change of parties upon the record without an amendment of the summons or a supplemental summons; and both of these require leave of court. It is the practice to make amendments, bringing in merely formal parties, without notice ;42 not because in theory notice is not requisite when amendment is made after any party has appeared,43 but because, unless there be substantial objection to the amendment, it might be allowed instanter to defeat any objection by a

38 The chapter on Parties in the second volume of this work treats the question of the power of the court to join, or strike out, upon the application of either plaintiff, or defendant, or person desiring to join.

So far as the present treatment of the subject is concerned, only inadvertent errors, omissions, or mistakes, in the selection of parties and correction of names or designations of parties, are considered.

39 N. Y. Code Civ. Pro., $ 452. But this section is held not to affect the rule that in actions at law the plaintiff may choose his adversaries. Chapman v. Forbes, 123 N. Y. 532; Rosenberg v. Saloman, 144 N. Y. 92. See post, chap ter on PARTIES.

Lewin v. Wright, 31 Hun, 327 (granting motion to amend summons so as to name a joint obligor as defendant, whose omission had been held fatal on demurrer).

N. Y. State Milk Pan Asso. V. Remington Agricul. Works, 89 N. Y. 22 (dictum).

Van Wyck v. Hardy, 4 Abb. Ct. App. Dec. 496, 39 How. Pr. 392, afi'g 11 Abb. Pr. 473 (partition).

40 Getty v. Spaulding, 3 Supm. Ct. (T. & C.) 174; mem. s. C., 1 Hun, 115; aff'd, 58 N. Y. 636. It was here held that the court have power to allow an entire recasting of the complaint and demand of relief, so long as the cause of action is substantially the same. In this case the leave included the dropping of part of the plaintiffs, and the adding of new defendants; and this, it was held, might be done even after a new trial ordered upon reversal of a judgment on the original complaint.

This doctrine is subject to the caution that the theory of the case on which the bringing in is held proper, must be one not inconsistent with the law of the case as laid down on the appeal. Clark v. Mackin, 34 Hun, 45.

41 Follower r. Laughlin, 12 Abb. Pr. 105. So, as to a change of the capacity in which defendant is sued. Southack v. Gleason, 49 Misc. 445, 98 N. Y. Supp. 859.

42 See Weil 1. Martin, 24 Hun, 645, 1 Civ. Pro. Rep. 133.
43 See paragraph 6 (above) ; Thayer 1'. Mead, 2 Code Rep. 18.

Where a party defendant has appeared in an action, he is entitled to notice of an application for an amendment by adding a new party. Kneeland e. Martin, 2 Monthly L. Bul. 56.

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