Wilkie v. Hall

Church, J.

The plaintiff, as long ago as November 30th, 1833, had attached thirty-five clocks of Anson H. Stuart, in a suit in his favour against said Stuart. The defendant, then *36 a deputy of the sheriff of Litchfield county, had served the writ of attachment, and in 'due form of law, then made and certified upon the writ, his doings thereon, under his official oath and authority. Since the commencement of this action against him, and while it was pending in the county court, to wit, in January 1838, and at a time after the defendant had ceased to be and was no longer a deputy sheriff, and several years after said original suit of Wilkie v. Stuart had gone into final judgment, and execution had been granted thereon, the present defendant, by the liberty and license of the county court, among the files and records of which court, said original writ then remained, made a material amendment and alteration in his original return of service upon said writ, and without any process or previous notice to the present plaintiff, calling upon him to shew cause why said amendment or alteration ought not to be made. And the question for our consideration, is, whether that amendment was lawfully made ?

It is objected, however, that as the plaintiff has introduced in evidence the original writ with the amended return upon it, he cannot contradict it, even by shewing what the original return was.

The plaintiff is not a volunteer in producing this return. He could in no other way prove, that the writ was served by this defendant; but he is no more precluded by every statement made in the return, than any other person would be. A party may disprove the testimony even of his own witness. The return of an offieer, by the law of this state, has never been treated as conclusive, but only as prima facie evidence of the truth of the facts stated in it. And more emphatically is this true, when the officer avails himself of his own return in his own favour. The return may be disputed : — and if so, there can be no more appropriate evidence for this purpose, than proof that the officer himself originally, and under his official sanction, had stated the facts differently from his more recent statement of them.

But the more important enquiry is ; could the county court lawfully permit this amendment to be made ? We think they could not.

It has been urged, that all amendments are within the discretion of the court, and that the court having in this case *37 exercised its discretion, there can be no further relief. This is true in all cases where the court has power to permit „ amendments, either by,statute or common law, and in cases where the law has not made it obligatory upon courts to permit amendments. The question here then is, whether by law the court had any authority to allow this amendment to be made, at the time when it was made ?

Our most liberal statute provision regarding amendments, is contained in the 34th section of the statute for the regulation of civil actions; by which, liberty is given to parlies “ to amend any defects, mistake or informality in the pleadings, or other parts of the records or proceedings.” This regulation, nearly in the same language, was first enacted as early as 1794. And it is evident that it was intended, that this power of amendment should be confined to the time when the proceedings were in fieri; because a discretionary power of awarding costs upon such amendments, is reserved to the court. There being no authority given, by our statutes, to amend in such a case as this, we resort to the common law to learn if the power is found there. The rule of the common law, as found in Peter sdorjfi’s Abr. vol. 1. p. 504. is, The court may amend at common law, in all cases, whilst the proceedings are in paper ; that is, until judgment is signed ; and during the term in which it is signed. For the roll or record is only the remembrance of the court, during the term ; but after the term, the court cannot amend any fault in the roll, unless it be occasioned by the misprison of the clerk; for then the record is not in the breast of the court, but in the roll itself. 3 Bla. Com. 407. 2 Barr. 756. 1 Wilson 7 .76.223. 1 Tidd’s Pr. 558. 660. These principles are directly recognized and affirmed, by this court, in Judson v. Blanchard, 3 Conn. Rep. 580 .

Where the roll or record varies from the original, the roll may be amended at common law, at any time ; for this is a misprison of the clerk, and the original furnishes some thing certain to amend by. 1 Petersd. Abr. 504. 510. and notes. This principle also has received the sanction of our own courts. Foot v. Cady, 1 Root 173 . Waldo v. Spencer, 4 Conn. Rep. 71 . Judson v. Blanchard, 3 Conn. Rep. 580. So also matters of form may be amended after the term. But in no case will essential amendments be allowed, unless *38 application be made for that purpose within a reasonable time. 1 Petersd. Abr. 504. in notis. In the present case, nearly five years had elapsed, before the amendment was made.

Writs of execution have been, by our practice, frequently amended, so as to conform to the original judgment and record.

The present experiment has been, at a venture, much further than any we have before known. Officers have, while they continued to be officers, and while the proceedings were in fieri and the parties in court, been frequently permitted, on motion, to amend their original returns. And if such amendments have been permitted after the proceedings ended and the record made up, we cannot presume this has ever been done, without some preliminary process or notice to bring the parties, and all the parties interested, before the court, to show cause in the matter. — A different course would violate first principles. — It would subject our public "records to continual mutilation, and affect the rights of parties, which had become ascertained and vested, by the most certain of all evidence— a public record. Here, there was no officer to correct his original return : the defendant had long before ceased to be a deputy sheriff, and had become, as well in respect to this affair, as all others, a private man. As well might the county court have permitted any stranger, who would swear he knew the facts, to come in and correct or amend the return of an officer, in any particular. And besides this ; the parties to the original suit were out of court; and if one of them, the present plaintiff, was there, he was not there as a party to the suit amended, but a different one. We cannot sanction a practice as dangerous as this.

We shall advise the superior court, that the plaintiff may shew what the original return was, and how and when it had been amended, and that the county court could not legally permit the amendment to be made.

In this opinion the other Judges concurred.

Judgment accordingly.