Mason & Pritchette v. Detroit City Bank

Where; leave, is given to amend an answer, a new answer with the amendments added, must be made, filed, and copy served, or the original answer withdrawn by leave of the court, and the amendments added, or the amendments must refer to the portions of the answer on file, intended to be amended, and specifying their nature and application. Where amendments were in the form of affidavits, without referring to the answer, it was held to be irregular,

This was a motion to dissolve an injunction. The defendants, at a former term, had obtained leave to amend their answer. The papers on file, claimed by the defendants to be amendments, were drawn in the form of affidavits, and do not purport, either in the body or indorsement of them, .to be amendments to the answer on-file. The complainants object to hearing the motion to dissolve the injunction, on the ground that no amendment to the answer has been filed or served. The defendants, Howard and the bank, had leave to amend their answer, by having the answer of the bank sworn to, and its seal verified. Without adverting to the substance of the affidavits filed as amendments to the answer of the bank, the complainants insist that these amendments are not legally and formally before the court, and that they have not been duly served upon the complainants. The amendments do not refer to the pleadings on file. They should have been added to, or incorporated with them in some way or other. , A new answer should have been drawn, and the amendments made a part of it; and a copy of the whole should have been served on the complainants. The first answer was a nullity, for all purposes of a motion to dissolve the injunction. This is admitted; of course, there was no necessity for excepting to it, to prevent such a motion. When it was perfected, by being properly authenticated, then the right to except became available. But after this no copy , was served. The affidavits of Harris and Brown were served, but with no notice that they were intended as amendments to the answer; consequently, the complainants have not had an opportunity of excepting to the amended answer. Even if the first position of the complainants be incorrect, still it is evident that they have a right in some way or other, to their exceptions, and that this is lost if the motion to dissolve is now heard. If the court should not deem it necessary, that the defendant should prepare a new answer, still it is beyond question, that the amendments should refer to the answer on file. See 1 Hoffm. Pr. 240, 290, 292. The amendments should have been made in one of three ways, viz: 1st. A new answer should have been drawn; the amendments added, and the whole served and filed; or 2nd. The old answer should have been taken from the files, by leave of the court; the amendments added, and properly served on the complainants; or Sd. The amendments should have been drawn, referring to the answer on file, and a copy should have been served, specifying their nature and application. The papers now produced, are mere general affidavits. They do not purport to be amendments. This practice is irregular and mischievous. They do not purport to be amendments to an answer. They do not refer to the answer as on file, and if false, no perjury can be assigned on them.