O'Flynn v. Holmes
| Decision Date | 29 November 1859 |
| Citation | 7 Mich. 454 |
| Parties | Cornelius O'Flynn v. Jabish Holmes and others |
| Court | Michigan Supreme Court |
Heard November 29, 1859
Error to Wayne circuit.
The return to the writ of error was filed in this court April 1, 1859, from which it appears that judgment was rendered in the court below, November 26th, 1858, against plaintiff in error. The declaration was in assumpsit on the common counts only, and judgment taken by default. Errors were assigned May 24th, the principal one being that the damages were assessed in the court below by the clerk, instead of by the court or a jury.
Motion denied.
D. J. Davidson, on affidavit showing that on October 29th, 1859, defendants in error had obtained an amendment of the record of the court below, so as to show that the plaintiff's damages were assessed by the court, moved for an order for a further return to the writ of error to bring up this amendment.
Holbrook & Bishop, contra.
We think the defendants in error too late in their action, and the motion must be denied.
And we think also that where a party, after return has been made to a writ of error, desires an amendment to the record of the court below, for the purpose of taking advantage of the amendment here, he ought to first apply to this court for leave to have the record remitted for the purpose of amendment, and make a showing by affidavit of the reasons for it, that we may see whether the case is a proper one to allow an amendment with a view to affect proceedings already taken in this court.
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Fuller v. Bates
...5 Gilm. 569; Becker v. Sauter, 89 Ill. 596; C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Servatins v. Pickel, 30 Wis. 507; O'Flynn v. Holmes, 7 Mich. 454; O'Flynn v. Eagles, 8 Mich. 136; 1 Tidd's Pr. 715; 1 Salk. 269; 2 Str. 765. The bill of exceptions not containing all the evidence, th......
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O'Flynn v. Eagle
...ago. Campbell, J. Martin, Ch. J. and Manning, J. concurred. Christiancy, J. dissenting. OPINION Campbell J.: The rule adopted in O'Flyn v. Holmes, 7 Mich. 454, was, we think, correct, and we are disposed to adhere to It is true, the amendment made in the court below, in that case, was not m......
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...than two years after judgment was entered. a. The circuit court had no jurisdiction to make any amendment after writ of error was brought: 7 Mich. 454; 8 Id. b. The variance between the declaration and the final entry of verdict and judgment must be reformed, if at all, in conformity with t......
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