Corby v. Burns

• Decision Date: 31 August 1865
• Citation: 36 Mo. 194
• Court: Missouri Supreme Court
• Parties: JOHN CORBY, ASSIGNEE, &C., Respondent, v. ELEXIUS BURNS, et al., Appellants.

36 Mo. 194

JOHN CORBY, ASSIGNEE, &C., Respondent,

v.ELEXIUS BURNS, et al., Appellants.

Supreme Court of Missouri.

August Term, 1865.

Appeal from Buchanan Court of Common Pleas.

W. Jones, for appellant.

Loan, for respondent.

LOVELACE, Judge, delivered the opinion of the court.

This is an action against a constable and his securities for failing to return an execution within ninety days, according to its mandate. The record shows that on the second day of March, 1861. Corby obtained judgment against Thomas Thoroughman before J. C. Robidoux, a justice of the peace for Buchanan county, and on the same day execution issued and was put into the hands of the defendant Burns, returnable within ninety days from the date. On the third of June, 1861, the execution was returned not satisfied, and this action is brought to charge the constable and his securities under the statute for the amount of the debt, and one hundred per cent. for not returning the writ within the ninety days. The action was brought before J. C. Robidoux, who tried the original suit; and, on the day this suit was tried, the defendant asked and obtained leave of the justice to amend his return on the execution, and showed by the affidavit of his deputy, who had the execution in charge, that it was in fact returned on the 29th day of May, 1861, instead of the 3d day of June; he was thereupon permitted to change the date of his return to the 29th of May, and upon the amended return the justice gave judgment for the defendants. The cause was then appealed to the Court of Common Pleas, which refused to permit the defendant to read his amended return, and gave judgment for the plaintiff, to reverse which the cause is brought to this court. The error complained of is the refusal of the court below to permit the defendant to read his amended return on the execution, upon the ground that the justice had no power to permit the return to be amended.

Courts are always liberal in permitting amendments of all pleadings and process that are before them, in order to promote the ends of justice. It is admitted by the respondent, that officers may amend their returns when third parties are interested, but cannot amend so as to exonerate themselves and their securities, and more particularly after suit has been instituted upon their breach of duty. We know of no absolute rule to this effect, unless a party has been misled by the return, and acted differently from what he would have acted had the return been...