The State, on the Relation of Bird, v. Hood and Another

The State, on the Relation of Bird, v. Hood and Another. "Wbit Amended by Pbíecipe.—The clerk having omitted to state in a capias ad respondendum the nature of the action or the amount claimed, it was held that the mistake might be amended by the prcedpe. APPEAL from the Huntington Circuit Court. The clerk omitted to state in the capias ad respondendum which issued in this case, either the nature of the action or the amount claimed. II. Cooper, for the appellant. P. Sioeetser, for the appellees. [MAJORITY — Sullivan, J.] Sullivan, J. This case comes before us on an appeal from the judgment of the Circuit Court quashing the capias ad res-pondendum in the cause, and dismissing the suit. On the day to which the cause was set for trial, a motion was made to quash the writ. The plaintiff thereupon moved the Court for permission to amend the writ by the praecipe on file. The Court refused the plaintiff’s motion, ordered the writ to be quashed, and gave final judgment for the defendants. The mistake in the writ was evidently a clerical one, and the Court should have permitted the plaintiff to amend it. Carr v. Shaw et al., 7 T. R., 295; Walker v. Hawkey, 5 *Taunt., 853; 1 Tidd’s Pr., 104; It is contended, that there was nothing on file or on the record to amend by; but the indorsement on the writ shows that the plaintiff, by a prcedpe, had given proper instructions to the clerk. It is the uniform practice of the Courts to correct such mistakes in furtherance of justice. Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.