Imágenes de páginas
PDF
EPUB

Doty, Goodin et al. v. Rigour & Co.

whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs, if any, to the other party, as such judge or court shall think reason531] able; *and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at nisi prius, the order for amendment shall be indorsed upon the postea and returned, together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly." But no such liberal provision was, by any English statute, extended to the proceedings after the same were recorded.

Our statutes of amendments previous to the adoption of the provisions contained in the code of civil procedure, were somewhat analogous to the English statutes. The act of March 12, 1845, of this state, was equally liberal with the statute 9 George IV., in allowing amendments in civil proceedings, and, like that statute, contained no provision for amending a record. It provided "that the court in which any action shall be pending, shall have power to allow parties to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, and upon such terms as may be just, at any time before or during the trial of such action, and before judgment rendered therein," etc. Curwen, 1170. The authority given by this statute of 1845, seems to leave the subject of amendments in a proceeding previous to judgment, whether in form cr substance, almost entirely to the discretion of the court. But even this liberal statute, like that of George IV., afforded no authority for such an amendment as made in the record before us. It is in vain, therefore, to look for precedents either to the English cases or to adjudications under our own former statutes of amendments.

The amendment of the record in this case evidently depends upon the statute alone for its support. It can only be sustained, if at all, by force of statute law. Upon this subject it is provided by the code of civil procedure of this state, as follows:

532] *SEC. 137. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not

Doty, Goodin et al. v. Rigour & Co.

change substantially the claim or defense by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment." Curwen, 1958.

This statutory provision is evidently a great innovation upon our former statutes of amendments, as well as upon the common-law rule. It seems to allow nearly the same liberty of amendment. after, which former statutes allowed before judgment.

Has the court of common pleas, then, in allowing the amendment under consideration, transcended the authority given by the foregoing provision of the code?

The amendment can not be objected to by reason of its having been made after the petition in error was filed in the case. An amendment which is allowable may be made in any stage of the proceedings. If amendable before error is brought, the record is equally amendable afterward, during the pendency of such proceedings in error, and while diminution of record may be alleged. and a certiorari awarded. It is therefore no objection to the amendment that it was made by the court of common pleas while proceedings in error in the case were pending in the district court.

Under the English statutes of amendments, it was said to be a general rule that there must be something to amend by. But while we do not regard this rule as applicable to amendments in all cases. necessary, previous to *judgment, we regard it as a rule pecu- [533 liarly applicable to amendments of a record. Looking, however, to the amendments under consideration, that rule does not appear to have been disregarded. The original petition, after stating what was the legal effect of the contract upon which judgment was asked, set forth a copy of the contract, the bill of exchange on which the action was predicated. The record showed that a judgment was rendered upon proof of a bill of exchange corresponding to the copy thereof so attached to the petition. That copy shows that the bill was in fact drawn on Butler & Winter instead of Miles & Bartlett, as stated in the petition.

The provision of the code, under consideration, evidently contemplates only such amendments after judgment as are clearly in furtherance of justice and consistent with the rights of all parties interested in such amendment. And although the exercise of the discretion, so clearly given to the courts, to allow amendments for

Parish v. Parish.

the furtherance of justice must be presumed to have been properly exercised, a supervising court will always regard such discretion as a legal discretion, and carefully look to the circumstances and extent of its exercise. For, unless such discretion be cautiously and prudently exercised in the amendment of records, such amendments will rarely be found to result in the "furtherance of justice."

But we do not perceive anything in the allowance of the amendment of the record in this case, inconsistent with our view of a proper exercise of such legal discretion by the court of common pleas.

The amendment was not by the introduction of a new defendant, or the introduction of allegation of fact, constituting a new and distinct cause of action, nor without notice, and in the absence of the other parties. But the amendments in this case have been in accordance with the truth as shown by other parts of the record, and for the purpose and tendency of sustaining the judgment. And the defendants in error, having remitted from the judgment of the 534] *court of common pleas the sum of $10.20 for exchange included therein, and by said amendments obviated the other errors, apparent in the former record, since the filing of the petition in error, we find no errors in the record as now appearing. The judgment of the common pleas, with the said $10.20 so remitted, must, therefore, be affirmed, and the petition in error stand dismissed at the cost of defendants in error.

BRINKERHOFF, C. J., and ScorTT, PECK, and GHOLSON, JJ., con

curred.

MARY PARISH v. DANIEL PARISH.

A decree from the bonds of matrimony, although obtained by fraud and false testimony, can not be set aside on an original bill filed at a subsequent term.

IN chancery. Reserved in the district court of Brown county. On the 24th day of June, 1853, the complainant filed an original bill in chancery, in the court of common pleas of Brown county, to impeach and set aside a decree of divorce from the bonds of

Parish v. Parish.

matrimony, rendered by said court at its previous March term, 1853, against the present complainant, and in favor of the present defendant, upon his petition charging her with adultery, fraudulent contract, and extreme cruelty.

The averments of the bill are, in substance, that the decree of divorce was obtained by fraud and perjury; that the court obtained jurisdiction by the false and fraudulent representation of the defendant that he was a resident of Brown county, and the false testimony of witnesses suborned by him to prove his alleged residence. The bill *further avers that no personal service of no- [535 tice of the pendency of the petition for divorce was ever made upon the complainant, and that she had no knowledge of its pendency; and that the defendant, for the purpose of preventing her from getting notice, fraudulently procured the suppression of the exchange of the local newspaper, in which the notice was published, with the Cleveland papers, where the complainant and her friends resided during the publication of notice; and that the same was true in regard to the publication of notice for the taking of depositions, and that although they were taken in the neighborhood of her place of residence, they were taken so secretly that she knew nothing of it.

And finally the bill avers that the defendant, to prove the charges made in his petition for divorce, wickedly and corruptly suborned witnesses to commit perjury.

To this bill containing these averments the defendant demurred upon eight grounds; the eighth is, in substance, that the decree of divorce is final and conclusive, and can not be reviewed or set aside. The case is disposed of upon this eighth ground. It is therefore unnecessary to state the other grounds of demurrer.

Ranney, Backus & Noble, for complainant:

The facts averred in the bill are all admitted by the demurrer, and they must certainly be regarded as making as strong a case as could ever be presented to a court of justice. They show that the petitioner stands convicted, upon the record of a court of justice, of the foul crime of adultery, in a decree procured by fraud, falsehood, and subornation of perjury on the part of her husband; and the only question is, whether this court possesses the power to do the wife justice by expunging the foul stigma from the records. of that court. That this is the regular way of proceeding to effect that purpose, and that no other decree would be permitted to stand

Parish v. Parish.

for one moment which had been obtained by such means, will not 536] be for one moment *doubted. Does a proceeding for divorce stand upon a different footing? and can the party guilty of such corruption and crime be entitled to retain the fruits of his rascality, and thus deprive the wife of her character and rights? We think not. But few cases are to be found upon the subject; but we refer the court, as containing a very satisfactory exposition of the subject, to the case of Allen v. Maclellen, 12 Penn. St. 328, and to the able opinion of C. J. Gibson, delivering the opinion of the court in that case.

In addition to the above, we refer the court to Vischer v. Vischer, 12 Barb. 640.

G. W. King, also for complainant.

Daniel Parish, defendant, argued the case on his own behalf.

PECK, J. This cause is now before us for disposition upon the demurrer filed by the defendant to the bill filed in the court below. The defendant assigns various causes for demurrer, relating principally to the form and sufficiency of the allegations of the fraudulent acts and conduct on the part of the defendant in the procuration of the decree for divorce, and the absence of necessary averments to show the materiality of the testimony fraudulently procured. But as these objections, if well taken, would only result in amendments of the bill, we have merely bestowed upon them a passing notice, as we are all satisfied that the eighth assignment is fatal to the present proceeding, and is one which no amendment of the bill could remedy. The eighth assignment is, "That the decree in said divorce suit of Daniel Parish v. Mary Parish (which the bill of the said Mary seeks to review and reverse) was, and is, final and conclusive (between the parties), and can not be reviewed or annulled (by original bill or otherwise)." This is an original 537] bill, *filed in the Brown county court of common pleas, to vacate and annul a decree of divorce from the bonds of matrimony, pronounced by that court, between the same parties, at a former This vacation is claimed on the ground that the original de'cree was procured by the complainant in that proceeding, by means of false and fraudulent representations as to his true residence, the willful suppression of the published notices of its pendency, and the false testimony of witnesses suborned by him. The demurrer, by

term.

« AnteriorContinuar »