4 Ala. 153 | Ala. | 1842
It does not appear that either of the defendants sought to have the sheriff’s return corrected, but the amendment was made by him mero motu, and without leave of the Court, after a judgment had been rendered in favor of the plaintiff, upon the hypothesis that the return, as indorsed upon the writ, was not according to the truth. Under such circumstances we think the amendment was properly rejected.
An application by an officer to correct his return of process, in general addresses itself to the discretion of the Court, to be allowed or denied according to circumstances. In such case the decision of the primary Court is conclusive, and not subject to revision on error. We have repeatedly held such to be the laAV, in respect to amendments of th.e process and pleading, and we cannot conceive a difference in principle between these cases and the present. [See also Mandeville et al v. Wilson, 5 Cranch’s Rep. 15; Bailey v. Musgrove, 2 Serg. & R. 29; 3 Phil. Ev. C. & H. ed. 1094, and cases there cited.] Whether if the motion for leave to the officer to amend his return had been submitted by the parties not served with process, its allowance or refusal would have been discretionary with the Court, we Will not undertake to determine.
We have only to add that the judgment is affirmed.