| Vt. | Mar 15, 1844
The opinion of the court was delivered by
The county court permitted the plaintiff to raise his ad damnum from the justice’s jurisdiction to one thousand dollars. The cause was then continued, and at the next term of the court the plaintiff obtained leave of the court .to moderate his claim, and to restrain it within the limits which he at first prescribed. The defendant at the same term moved .to dismiss the action, on the ground that the justice had no original jurisdiction of it. The question is in relation to the effect that those alterations had upon the action.
When the action came into the county court, none of these imperfections were upon it. The county court had appellate jurisdiction, and the justice had original jurisdiction. We therefore think it would not do to say that this writ was thus amended out of court, . — especially as it was restored to its original condition, before any action was had upon it. If the defendant had taken trial upon it, and the plaintiff had recovered more than one hundred dollars, an interesting inquiry might then have been suggested, in relation to that judgment. The difficulty in that case would be, that the papers
After the copies had been thus mutilated by raising the ad damnum., instead of asking leave of the court to have these papers restored, suppose the plaintiff had obtained leave of the court to file a new set of copies from the justices records, and to have them substituted for the first. In such case I have no doubt of the power of the court to grant the leave. Imperfect copies are sometimes produced ; the court grant leave to have them perfected. The justice sometimes makes an imperfect record and sends up corresponding copies; the court permits the party, after the justice has perfected his records, to file new copies of the record thus perfected. The case being properly, in court, it is in the power and discretion of the court to alíow imperfections in the papers to be corrected.
There is a farther question in this case in relation to the caption of some depositions. In the caption it is stated that they were taken at the request of Sanford Plumb, who is not one of the parties. The form of the caption is a part of the law ; it is not a form got up in accordance with the provision of the law, but it is the law itself. But it is said that the form does not require that the request should be from one of the parties, and it is true that it does not in so many words, but it is equally imperative, if in its terms it precludes any other conclusion. It requires that it should state at whose request the deposition was taken, to state the occasion on which it is to be used, to give the name of the parties, the cause for taking' it, and to state whether the adverse party was notified. The inquiry is here suggested, — adverse to whom 1 The answer must be apparent,— adverse to the party at whose request the deposition was taken. But if the deposition is not taken at the request of one of the parties to the action, how does- the justice know who the adverse party is 1 — and how does he know when the adverse party has been notified ?
The caption to these depositions not being in compliance with the statute, they should not have been admitted, and for this the judgment is reversed.