Parks v. Barkham
Michigan Supreme Court
Cask reserved from Oakland circuit court.. Replevin. The proceedings were instituted against the defendant by the Christian name of James. After the affidavit had been filed and the writ issued and served, but before the execution of the replevin bond, it was discovered that the defendant’s name was Joseph; and the plaintiff thereupon moved the circuit court for leave to amend the affidavit and writ by inserting the latter name.
1Opinion of the Court
By the court,
Whipple, C. J.
My impression at the circuit was that the motion should be denied, for the reason that the affidavit^ which was the foundation of the proceedings, could not be amended. My attention, however, was not drawn to the proviso contained in the 2nd sec. of chap. 5, title 4, part 3 of the Revised Statutes of 1838. By the terms of that proviso, a motion to quash a writ of replevin, in case the same issued before the filing of the proper affidavit, is to be denied, provided the plaintiff should, within such time and upon such terms as the court might direct, file with the…
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