19 Mo. 157 (Mo. 1853), Blaisdell v. The William Pope

• Citation: 19 Mo. 157
• Opinion Judge: GAMBLE, Judge.
• Party Name: BLAISDELL, Appellant, v. STEAMBOAT WILLIAM POPE. Respondent.
• Attorney: P. B. Garesche, for appellant. M. L. Gray, for respondent.
• Court: Supreme Court of Missouri

Page 157

19 Mo. 157 (Mo. 1853)

BLAISDELL, Appellant,

v.

STEAMBOAT WILLIAM POPE. Respondent.

Supreme Court of Missouri.

October Term, 1853

1. A return to a writ against a boat which omits to state that the officer seized the boat is defective.

2. It is not too late to amend the return after motion filed to set aside the judgment. Maulsby v. Farr, 3 Mo., overruled.

3. The officer who executed the writ may amend his return, although when leave is given to amend, he has ceased to be the officer of the court.

4. It is not necessary for the officer to state in his return that he retains the boat in custody.

Appeal from St. Louis Law Commissioner's Court.

P. B. Garesche, for appellant.

M. L. Gray, for respondent.

OPINION

GAMBLE, Judge.

1. The officer having a writ to seize the boat William Pope, made his return upon it in these words: " Executed this writ in the county of St. Louis by going on board the steamboat Wm. Pope and offering to read the writ and petition to Selar Simons, Captain; also by leaving a true copy of this writ and petition at the usual place of abode of Oliver Harris, with a white person of the family, above the age of fifteen years. February 22, 1852." This return is defective in not stating that he had seized the boat.

A judgment was rendered by default, and damages assessed. A motion was made to set aside the judgment, and, pending that motion, upon leave given by the court, the return of the officer was amended by stating that he had seized the boat.

A new motion was made to set aside the judgment, upon the grounds that the original return of the officer not showing that he had seized the boat, the court had no jurisdiction to proceed in the cause; that the amendment was improperly admitted, because a motion was at the time pending to set aside the judgment, on account of the defect in the return?? that the amendment in the return was improperly made, because the officer who had executed the process had been superseded by an act of assembly which made the marshal of the county the officer of the law commissioner's court. It was also insisted that the return, as amended, was insufficient to sustain the jurisdiction of the court, because it did not state that the officer retained the boat in his custody.

The law commissioner sustained the motion of the defendant to set aside the...