13 F. 650 | U.S. Circuit Court for the District of Eastern Missouri | 1882
The petition does not count on a written lease, nor was such a lease filed with the petition as the statute requires, hence the trial proceeded as on a verbal lease for $650 per year, which the answer admitted. If a written lease contained specific terms or provisions of which the plaintiff desired to avail himself, these terms should have been set out or averred and the lease filed. The answer and counter-claim informed the plaintiff of the nature of the defense; showing, if there was ,a written 'lease of whose terms the plaintiff sought advantage, the necessity of conforming to the statute; otherwise the proofs would not conform to the pleadings, and the defendant be, at the trial, taken at disadvantage and surprise.
The petition sets out in form three distinct causes of action, viz., the balance due for rent on each of three successive years. After the trial had progressed for some time the plaintiff asked to amend by consolidating the three causes into one, and the court remarked that such an amendment was unnecessary, against defendant’s objection; for in its charge the court would present the case to the jury as for the whole amount of rent due.
The charge was given accordingly, The plaintiff, therefore, had all the benefits he sought by his proposed amendment.
It is now objected that the verdict did not state the finding of the jury separately as to each of the three causes of action. It is man
Both motions are overruled.
HOTE
Amendments—In General. Section 954 is remedial, and should be liberally construed, (Parks v. Turner, 12 How. 39; Tobey v. Claflin, 3 Sumn. 379; Gregg v. Gier, 4 McLean, 308;) but amendments are not allowed with such liberality in penal actions or forfeitures, as in civil actions, (U. S. v. Batchelder, 9 Int. Rev. Rec. 98;) and a criminal information cannot be amended at the trial in any manner affecting the charge, (Columbia v. Herlihy, 1 McArthur, 466.) The power to amend at common law was limited to trivial errors, and could not bo exercised after final judgment, (Smith v. Allyn, 1 Paine, 453; Nelson v. Barker, 3 McLean, 379;) but this section empowers generally any United States court to disregard mere defects in form in giving judgment, except those which the party demurring sets down as the cause of the demurrer, (Rosenbach v. Dreyfuss, 1 Fed. Rep. 394;) and authorizes the allowance of amendments during the trial, (Bamberger v. Terry, 1 Morr. Trans. 581.) It embraces every step in the cause down to the judgment. Roach v. Hulings, 16 Pet. 319. Where no local statute or rule of local law is involved, the power to amend is the same in attachment suits as in others, (Tilton v. Corfield, 93 U. S. 163;) and amendments of more form, not going to the merits, and not of such a character as to prejudice, will not entitle respondents to. costs, (The Edwin Post, 6 Fed. Rep. 314.) A defect is formal when a defendant must of necessity be guilty of a breach of the law, and liable to an action if the declaration is true. Jacobi v. U. S. 1 Brock. 520. This section, except the last clause, relates to defects which are mere matters of form, and the last clause embraces matters of substance. Smith v. Allyn, 1 Paine, 153. The power is confined to process and pleadings, and reaches all defects, but does not extend to the judgment. Id. It extends to actions brought by the United States. Jacobi v. U. S. 1 Brock. 520.
Amendment of Verdict. The words “ or course of proceeding whatever ” are broad enough to include verdicts, (Parks v. Turner, 12 How. 39;) so if a verdict is general it may be amended so as to apply to the count under which the evidence is given, (Matheson v. Grant, 2 How. 263; Stockton v. Bishop, 4 How. 155.) Leave may be granted to amend a verdict in replevin after the jury had returned and another cause had been tried. Argueles v.
Amendments after Yerdiot. A defective pleading may be cured after ■> verdict, (Garland v. Davis, 4 How. 131; Clark v. Sohier, 1 Wood. & M. 368;) and the rule that a defective statement of a good cause of action is cured by the verdict extends to penal actions, (Smith v. U. S. 1 Gall. 261.) All circumstances necessary in form or in substance to make out a cause of action, though imperfectly stated, must be proved at the trial; hence the defect is cured by the verdict, (Pearson v. Bank, 1 Pet. 89; Matheson v. Grant, 2 How. 263; Stockton v. Bishop, 4 How. 155; De Solry v. Nicholson, 3 Wall. 420; Corcoran v. Dougherty, 4 Cranch, C. C. 205; Scull v. Higgins, Hemp. 90; Stanley v. Whipple, 2 McLean, 35; Kemble v. Lull, 3 McLean, 272; Gray v. James, Pet. C. C. 476; Dobson v. Campbell, 1 Sumn. 319;) as an allegation under a videlicet, (Ingle v. Collard, 1 Cranch, C. C. 152; Woodward v. Brown, 13 Pet. 1;) or the omission to join a party as plaintiff who ought to have been joined, (Greenleaf v. Schell, 6 Blatchf. 225;) or to give the time when the injury-was done, (Stockton v. Bishop, 4 How. 155;) or to aver the value of the foreign money in an action on a bill of exchange, (Brown v. Barry, 3 Dall. 265;)
as a declaration in debt is in the debit as well as the detinet, (Id.; Gardner v. Lindo, 1 Cranch, C. C. 78;) but if it omits to show matters essential to the jurisdiction, (Smith v. Allyn, 1 Paine, 486,) or to state a cause of'action, it is not cured by the verdict, (Smith v. Allyn, 1 Paine, 486; Renner v. Bank, 9 Wheat. 581; McDonald v. Hobson, 7 How. 745; Washington v. Ogden, 1 Black, 450;) or if a libel in rem does not show the commission of an offense. See The Virgin, Pet. C. C. 7. An alternative allegation in an action of debt for a penalty, can only be objected to by a demurrer, and is cured by a verdict. Jacobi v. U. S. 1 Brock. 520. An objection that the declaration does not make profert of letters of administration cannot be taken after verdict. Gardner v. Lindo, 1 Cranch, C. C. 78; Matheson v. Grant, 2 How. 263. If a declaration merely assigns the non-payment of the penal sum on a bond, an omission to _ assign a special breach of the condition, in a replication to a plea of performance, is cured by a verdict. Minor v. Mechanics’ Bank, 1 Pet. 46. A verdict will ‘cure a discontinuance caused by the failure of the executor to apjjear within the proper time after suggestion of the death of the plaintiff. Brent v. Coyle, 2 Cranch, C. C. 287. • An allegation under a videlicit may be disregarded. If the breach alleged is not a breach of the covenant, error is not cured by verdict. Ingle v. Collard, 1 Cranch, C. C. 152. A plea of non assumpsit, in an action on the case, is not cured by a verdict. Garland v. Davis, 4 How. 131. Where two pleas present substantially the same issue, the fact'that an immaterial issue is joined on the replication to one plea is no reason for arresting a judgment and awarding a repleader, (Erskine v. Hornbach, 14 Wall. 613; Pegram v. U. S. 1 Brock. 261;) so if plaintiff replies to only Oiie, (Laber v. Cooper, 7 Wall. 565.) Although a decision sustaining a demurrer to a-plea-is .erroneous, yet if the defense can be presented under
Judgments and Degrees. All judgments, decrees, or orders are under control of the court which pronounces them during the term at which they are rendered, and may be set aside, vacated, or modified. Bronson v. Schulten, 3 Morr. Trans. 500. But amendments to judgments or decrees can not be made except as to formal defects, (Allers v. Whitney, 1 Story, 310;) where the entry was erroneously made, (U. S. v. Bennett, Hoff. 281;) or where there is a verbal mistake of the clerk in using a superfluity of words in entering judgment, (Shaw v. Railroad, Co. 101 U. S. 557;) or where by a misprision of the clerk the judgment had not been entered according to the declaration^(Woodward v. Brown, 13 Pet. 1;) or where the clerk had omitted to enter judgment allowing interest, (Bank v. Wistar, 3 Pet. 431;) or if a judgment by confession is entered without declaration or rule to plead, (Ault v. Elliott, 2 Cranch. C. C. 372;) or if made by only one of several joint defendants, (Hyler v. Hyatt, Id. 633; Newton v. Weaver, Id. 685; see Ringgold v. Elliott, Id. 462;) or if entered in a wrong case, (Pierce v. Turner, 1 Cranch, C. C. 433;) or if made by an attorney by mistake, (Bank v. McKinney, 3 Cranch, C. C. 173.) A judgment may be amended by striking out a part which the court has no authority to make, (The Hiram Wood, 6 Chi. Leg. News, 135;) or where it was entered by mistake,(U. S. v. Fearson, 5 Cranch, C. C. 95,) any clerical error may be corrected after the lapse of the term,(Scott v. Blaine, Bald. 287; Brush v. Robbins, 3 McLean, 486;) as by making it payable in gold or silver coin, (Cheang Kee v. U. S. 3 Wall. 320.) A judgment or decree cannot be stricken out after the lapse of the term at which it is rendered, (Brush v. Robbins, 3 McLean, 486; Wood v. Luse, 4 McLean, 254; Scott v. Blaine, Bald. 287;) but if irregularly entered it may be set aside, (Union Bank v. Crittenden, 2 Cranch, C. C. 238;) or for a mistake in the assessment of damages,(Crooks v. Maxwell, 6 Blatchf. 468;) or if considered as a nullity, (Wood v. Luse, 4 McLean, 254; Harris v. Hardeman, 14 How. 334.) Though the court cannot change the essential parts of a decree after the term at which it is entered, yet it may subsequently amend the decree as to the mode of execution, manner of sale, time of publication, and distribution of proceeds, (Turner v. I., B. & W. R. Co. 8 Biss. 380;) but an interlocutory decree is always open to amendment and correction, [De Floven v. Reynolds, 8 Fed. Rep. 434.)—[Ed.