36 Mich. 97 | Mich. | 1877
This case has twice before been in this court: Montgomery v. Merrill, 18 Mich., 338; Merrill v. Montgomery, 25 Mich., 73. It is an action of ejectment brought for lands which the plaintiff claims under an execution sale on a judgment against the Calhoun County Bank. The defendant is in possession, and though the nature of her claim is not disclosed by this record, it appeared when the case was before us in the first instance that she claimed under proceedings against the bank ante-dating the plaintiff’s judgment. The only questions which the present record brings up are: First, The validity of an amendment made to the record of plaintiff’s judgment in order to show that the court had jurisdiction to render it; and second, whether, if the amendment was not admissible, the facts upon which it was made could be shown on the trial in order to sustain the jurisdiction of the court which rendered the judgment.
The charter of the Calhoun County Bank expired in 185?, but by statute the bank was continued in existence for three years longer for the purpose of winding up its concerns. The suit in which the plaintiff obtained his judgment was commenced in 1858, after the bank had ceased to do business. Service of the declaration was made upon persons who, the attorney showed by affidavit, he' was informed and believed were the last president and two of the last directors of the bank. This showing was held insufficient to warrant - such service; a positive showing of facts being requisite when an exceptional service is' to be made.—Merrill v. Montgomery, supra. After the decision to that effect had been made by this court, the plaintiff made an ex parte application in the court below for leave to amend by making the positive showing that should have been made in the first instance, and this was granted August 3, 1875. The showing consisted in affidavits that Sidney Ketchum, one of the parties upon whom service of the declaration was made, was the last president of the bank. That showing, if originally made, would have been sufficient to support the judgment.
Counsel for the plaintiff have been very diligent in collecting cases to show how liberal have been the rulings of the courts in permitting amendments in support of their proceedings and in furtherance of justice. The power to amend is a highly valuable one, and we should not willingly see. it limited beyond what is necessary to keep it within safe bounds. So many errors occur through inadvertence or the carelessness of officers that some power of correction is absolutely essential, and the errors occur under such a variety of circumstances and differ so greatly in the manner in which they affect interests when discovered, that it is not safe to lay down any very strict rules regarding the time and the manner of permitting amendments.
Where the record itself furnishes the data for the required amendment, great liberality should be allowed, because the danger of injustice in permitting amendments is very slight.—Emery v. Whitwell, 6 Mich., 474. But where the amendment is to be made on an extrinsic showing, all practicable precautions should be taken- that no one be wronged by the action of the court; and as most facts are susceptible of contradiction, there ought always when practicable to be notice to the party adversely interested, in order that he may have the opportunity to make a counter showing. And the more ancient are the proceedings, the greater is the importance of giving this notice, because the danger of a false showing increases as the distance in time from the facts increases.
In Denison v. Smith, 33 Mich., 155, it was decided
But it is said that the bank having gone out of existence, there was no one upon whom notice could be served. Whatever force there might be in this excuse in some cases, it could have none under the facts of this case. The amendment was desired for the purpose of controlling this very case, and this defendant was the party to be affected by it. She was the party, and so far as we know the sole party interested adversely to the amendment, and as this was perfectly well known to the plaintiff, the duty to give notice was apparent. This seems to us a fatal defect; we cannot
Another objection seems to us fatal. The application for leave to amend was not made until seventeen years after the service had been made. If it be urged that the delay in the application was because the defect was not discovered until the case was last in this court, the case is helped but little, for even then there was a delay of three years, which is only excused by showing that the circuit judge had been of counsel in the case and was incompetent to hear an application. But with other circuit judges within easy reach at any time we cannot attach much importance to this fact. The matter had been delayed longer than is now necessary under our laws to bar a right of entry; and it is the party’s misfortune if he has lost rights in consequence. The utmost promptness is required when application is to be made to correct errors in the record.—Rogers v. Rogers, 1 Paige, 188.
We think also that the court was right in rejecting the evidence offered by the plaintiff on the trial to show that Sidney Ketchum was in fact the last president of the bank. Jurisdictional facts cannot rest in parol, to be proved in one case and disproved, perhaps, in another. The record must be complete in itself.
The judgment must be affirmed, with costs.
