People ex rel. Davis v. Montgomery Common Pleas
New York Supreme Court
Motion for mandamus. In June, 1836, two writs oi fi.fa. were issued on two several judgments, in the common pleas of Montgomery, against J. S. Davis, one in favor of T. and the other of J. Davis, and levied on the goods of the defendant. By mistake, the year of the teste was 1826 instead of 1836.. A fi. fa. from the supreme court was immediately afterwards issued in favor of H. Chapman against J S. Davis, and also levied.
Read the full summary
Motion for mandamus. In June, 1836, two writs oi fi.fa. were issued on two several judgments, in the common pleas of Montgomery, against J. S. Davis, one in favor of T. and the other of J. Davis, and levied on the goods of the defendant. By mistake, the year of the teste was 1826 instead of 1836.. A fi. fa. from the supreme court was immediately afterwards issued in favor of H. Chapman against J S. Davis, and also levied. The attorney for T. and J. Davis discovering the mistake, after the levy, corrected the teste of the executions which issued from the common pleas. Chapman moved the common…
1Opinion of the Court
By the Court,
Cowen, J.
It is supposed that the improper conduct of the attorney in amending the writs of fi. fa., without first obtaining a rule for that purpose, rendered the process merely void ; or at least, justified the court below in denying the benefit of an amendment in their discretion, as a discouragement to sucn an unwarrantable interference with their process.
*333A wrong teste inserted in an execution by mistake is always amendable [634] by rule; but without such rule, no process, pleading, or record can be amended. (2 R. S. 425, § 9.) The rules of practice are still more comprehensive…
2Cases cited1 opinion
- Johnson v. ClarkNew York Supreme Court · 1831