4 Daly 518 | New York Court of Common Pleas | 1873
—I think the commission may be amended by doing now, after its execution, what ought to and would have been done when it was issued. Whether regarded as “ process,” or as a “ proceeding,” it is amendable under the general power given by the Revised Statutes (2 R. S. 424, § 1), which is a power to amend any process, pleading, or proceeding, in form or substance, for the furtherance of justice, and such is the nature of the amendment asked for here. If any judge of the court had been applied to at the issuing of the commission, he would have ordered to have been done exactly what has been done—a return of the commission by mail addressed to the clerk of the court. The commission issued by order, of and under the seal of the court. The interrogatories were settled by consent of parties, instead of being allowed by a judge, as provided by statute. Had they been settled by a judge of the court, then, under the statute, it would have been his duty to
The commission had been returned more than two years,
The want of statutory requirements in any process or proceeding in an action may be supplied by amendment; for the provision in respect to amendments makes no distinction between statutory requirements and any other. It is a general power to be exercised in all actions, and is not to be confounded with special statutory proceedings, which are not actions, and where every statutory requirement is necessary to give jurisdiction.
The writ of commission is to be regarded as process, and is amendable wherever process is amendable. The statute has added comparatively little to the power of courts of record to allow amendments. It has, however, extended these powers to all courts in which an action is pending, so as to include courts not of record, such as courts of justices of the peace. The power of amendment in courts of record in actions, was nearly as great before the statute as after it, and it is only necessary to resort to the previous practice and authorities, to know when process was amendable and when it was not. Process was not amendable where it appeared upon the face of it that it was absolutely void. It was not adjudged to be void for the omission of something which was essential; but for what was contained in it. Thus a writ was held to be absolutely void where one or more terms intervened between the teste and return (Bunn v. Thomas et al. 2 Johns. R. 190; Burk v. Barnard, 4 Id. 309). It was void because it was shown upon the face of it that it was in violation of a rule of the common law, which required that mesne process'should be returnable in the term after its teste, that the defendant might not be unnecessarily detained
If the writ were otherwise good, but something was omitted which was essential, the court would allow it to be supplied by amendment after the execution of the writ; the whole policy of the law being in favor of allowing omissions to be supplied by amendment, in cases where it tends to promote the ends of justice, and it has been truly called the wisest and most beneficent part of our law (Williams v. Wheeler, 1 Barb. 51).
Thus the want of the clerk’s signature to the process may he supplied by amendment (Pepoon v. Jenkins, 3 Johns. Cas. 420, 2d ed.); or of the seal of the court (People v. Steuben Com. Pleas, 5 Wend. 103 ; Jackson v. Brown, 4 Cow. 550); or the sheriff’s return to a venire may be added by amendment after trial (Id.) ; or a sheriff’s return to process, amended after an action is brought for a false return (People v. Ames, 35 N. T. 482); or process may be amended in the name of the defendant after it is executed and he is in custody under it (1 Tidd’s Pr. 161, 9th Bond, ed.); or a writ of replevin in the.
The plaintiff, in opposing the application, relies upon the eases of Jackson v. Hobby (20 Johns. 857); Richardson v. Gere (21 Wend. 156); Smith v. Randall (3 Hill, 497); and Fleming v. Hollenback (7 Barb. 271), adjudging that the statute authorizing the talcing of testimony of witnesses out of the State by commission is an innovation upon the common-law rules of evidence, and that therefore its positive requirements must be strictly complied with. But these were not cases where any application was made to • amend, but where the commission was held to be defective for want of some one of the requirements of the statute, and they in no way áffect the ■question of the power of the court to remedy a defect of this kind by amendment. In Ford v. Williams (24 N. Y. 366), where a commission was rejected for want of one of these requirements—a seal—Judge Denio recognized that process without a seal might be amended, but said that that practice did not touch the case, as there had been no application to the ■court, and no order, in the matter. He did not, in so many words, say that the defect might have been remedied by an amendment, if it had been applied for ; but I think, from his language, that it is very evident that he so understood the law.
As 1 have said before, what would have been directed by a judge to have been done, has been done, in respect to the return of the commission. There is no pretence of any abuse. The commissioner, upon the execution of the commission, sent it by mail addressed to the clerk of' the court, by whom it was ■duly received, and placed on file. It was for the examination of witnesses in Texas, and two years have elapsed since its ■execution and return. The witnesses may now be scattered or
There is no ground for complaint against the plaintiff for raising this technical objection to the reading of the defendants’- commission, as the defendants first interposed technical objections to the reading of commissions issued by the plaintiff, upon the ground that it did not appear, the witnesses being Mexicans, that the commissioner had sworn an interpreter to translate the questions into the Spanish language to the witnesses, and to translate the answers of the-witnesses into the English language, before they were written down and certified by the commissioner. The commissioner, who was in the consular service of the United States, was acquainted with the Spanish language, and having received no special instruction in the commission to the contrary, he very naturally acted as interpreter, putting the questions sent to him to the witnesses in Spanish, and putting the answers returned by them into English. There is no pretence that he was guilty of any partiality or unfairness; that he was not able to translate correctly the questions into Spanish, and the replies into English, or that he did not in every instance do so. In the absence of anything to the contrary, it will be presumed that the commissioner did his duty fairly and honestly (Sheldon v. Wood, 2 Bosw. 280). There is no provision in the statute as. to the mode in which witnesses unacquainted with the English language shall be examined. They must necessarily be examined through an interpreter, and where the commissioner to whom the commission was sent acted as interpreter, and no special instructions in that particular were given him .by either party, it will be presumed that both parties meant that he should do so. The commission was executed at Frontinara, in.
The examination was taken before the vice-consul, provision having been made in the commission that if either were absent, it might be taken before the other. The commission is sought to be set aside because the consul was in Tabasco for some time after the commission arrived there, and that it might have been executed before him, although he was absent in the city of Mexico when the witnesses were brought before the vice-consul for examination. It is stated upon information and belief, that the evidence taken before the vice-consul “ is inconsistent with proven facts” and the defendants therefore move that the commission be vacated. I am at a loss to perceive what ground this affords for vacating the commission. Not a single fact but this is stated; nothing to show any abuse on the part of the vice-consul who acted; any unfairness, partiality, or misconduct on his part, or on the part of any one else. The application to vacate the plaintiff’s commission, either for the want of a sworn interpreter, or because the viceeonsul alone acted, will be denied ; and that there may be no further delay, the defendants’ application for the amendment of his commission will be granted upon his stipulating in writing that the plaintiff’s commission may be read on the trial without any objection to the mode of executing it.
Order accordingly.