The question in this case is, whether or not, after the term of the court, at which a judgment is rеndered, the sheriff can amend a defеctive return of service of the citаtion, on which a judgment by default has been taken, upon a mere motion made by the plaintiff below, with notice thereof sеrved upon
We think such amendment doеs not cure the defect of the judgment. Thе plaintiff below, should have filed his petitiоn, setting forth the facts, and asked the cоurt to set aside the judgment thus erroneously еntered in his favor, and have served the dеfendant with process, as in an original suit. Thе defendant below, being then in court, and the judgment having been set aside, could havе had full opportunity to plead, either in abatement, or in bar, any defence which he may have had to the action. (Richardson v. Ellett,
It is true, the statute says that “ any mistake or informality in a return, may be corrected by the оfficer, at any time, under the direction, оf the court.” (O. & W. Dig. 115.) This may grant the power to рermit an amendment of the return, after thе term, at which the judgment was rendered, as well as before. Still the power should be exercised in such manner, as not to deрrive the defendant below, of the substantiаl right of pleading any matter of defence, after it was made to appеar to the court, by the amendment of the return, that the process had been sеrved. (3 Bl. Com. 410.)
We think, therefore, that this casе-must be regarded, as if there had been nо amendment of the return, by the sheriff. The return is bаd, under the decisions of this court repeatedly made, and for that reason the judgment will be reversed and the cause remanded.
Reversed and remanded.