2 Mo. 7 | Mo. | 1827
delivered the opinion of the Court.
This was an action of assault and battery against Sweazy, Ellis, Kirkland and David Sharp ; the plea, writ and declaration are against David Sharp, the verdict and judgment are against Daniel Sharp; this variance is assigned for error. The Court is clear that this variance is error as to Daniel Sharp, and avoids the whole judgment. The statute of amendments has been relied on to show that this Court ought to amend the judgment. The language of the statute is, that if any verdict shall be hereafter given by any Court or juiy for either party, judgment thereon shall not be stayed or reversed by reason of mistaking the Christian or sur-name of the plaintiff or defendant, by the Clerk in any declaration or pleading; if on the same record the right name is once truly alledged, whereunto the party might have demurred and shown the same for cause, (see the Revised Code, 129).
In this case the mistake is in the verdict and judgment when it was too late to demur. The case is not within the statute relied on, and the amendment cannot be allowed. The judgment of the Circuit Court is reversed with costs, and the cause is sent back to the Circuit Court of Cape Girardeau county for a new trial.
