Weatherford v. Van Alstyne

Bell, J.

The defendant in error brought suit in the court below, against Weatherford and two other persons, upon a promissory note for one thousand dollars. After service, the plaintiff amended, and by the amendment claimed that Weatherford was indebted to him in the further sum of fifty dollars due upon a certain obligation in writing, &c. There was no service of the amended petition, and judgment was rendered by default for the whole amount claimed by the original and amended petitions. We have decided to-day, in the case of Morrison v. Walker, that the amendment ought to have been served, unless the party to be affected by it was actually in court, in person, or by attorney, to take notice of the amendment. The judgment on the note for one thousand dollars is correct, but the judgment on the demand for fifty dollars is erroneous. The judgment may be reformed, and judgment rendered here on the demand for one thousand dollars, made in the original petition of plaintiff below; or the judgment of the court below will be entirely reversed and the cause remanded, at the option of the defendant in error.