A writ of error which names as the plaintiff in error a certain
person as administrator of a certain estate may be amended by
substituting the name of another person who appears by the
accompanying record to have claimed to succeed him as such
administrator, tendered the bill of exceptions, and given bond to
prosecute the writ of error.
A writ of error should state the Christian name of the plaintiff
in error, and not the initial letter thereof only.
This was a motion to amend a writ of error from this Court to
the Circuit Court of the United States for the Southern District of
Ohio by changing the name of the plaintiff in error. The record of
that court showed the following matters:
The original action was brought in November, 1889, by "W. N.
Walton, administrator of the estate of Latimer Bailey, deceased," a
citizen of New Jersey, against the Marietta Chair
Page 157 U. S. 343
Company, a corporation of Ohio, and having its principal office
and place of business in that district, to recover damages in the
sum of $10,000, for trespassing upon land of Bailey and cutting and
carrying away timber therefrom in his lifetime.
After the filing of an answer by the defendant and of a
replication by Walton, as Bailey's administrator, "came L. W.
Ellenwood," and suggested that Walton's letters of administration
had been revoked, and "the said L. W. Ellenwood has been duly
appointed and qualified as administrator of the estate of said
Latimer Bailey, deceased," and the court, "on motion of the said L.
W. Ellenwood," ordered "that the said action do stand revived in
the name of said L. W. Ellenwood as such administrator, and proceed
in his favor."
The defendant filed an answer protesting against "the revivor of
this action in the name of L. W. Ellenwood, as administrator of the
estate of Latimer Bailey, deceased," and setting up that "said L.
W. Ellenwood is not the successor in office of said W. N. Walton,
as the administrator of the estate of said Latimer Bailey,
deceased," and that Walton never was such administrator, and any
appointment of him as such was void for want of jurisdiction in the
court which appointed him.
Upon the defendant's application, and after the introduction of
evidence and a hearing, the court adjudged that the order reviving
the action in Ellenwood's name be vacated and set aside, and that
the action be abated and stricken from the docket. To this judgment
"the said L. W. Ellenwood duly excepted," and "the plaintiff, L. W.
Ellenwood, as administrator of the estate of Latimer Bailey,
deceased," tendered a bill of exceptions, which was allowed by the
court on May 27, 1891.
On June 19, 1891, a bond was filed in the clerk's office,
executed by "L. W. Ellenwood as principal" and by two other persons
as sureties, reciting that "the above-named L. W. Ellenwood, as
adm'r of the estate of Latimer Bailey, dec'd," had taken out a writ
of error from this Court "to reverse the judgment rendered in the
above-entitled action," and conditioned that
"the above-named L. W. Ellenwood, adm'r as
Page 157 U. S. 344
aforesaid, shall prosecute his said writ of error to effect, and
answer all costs if he shall fail to make good his plea."
On June 20, 1891, there was filed in the clerk's office of that
court an assignment of errors and prayer for citation purporting to
be made by "L. W. Ellenwood, by his attorneys," three persons
named, and signed by them as "Attorneys for Plaintiff in
Error."
In all these proceedings the action was entitled "W. N. Walton,
Administrator of the Estate of Latimer Bailey, Deceased," as
plaintiff, against the Marietta Chair Company, as defendant.
The writ of error from this Court to the circuit court was dated
June 20, 1891, was signed by the clerk, and under the seal of that
court, as permitted by Rev.Stat. § 1004, and began thus:
"Because in the records and proceedings and also in the
rendition of the judgment of a plea which is in the said circuit
court, before you, between W. N. Walton, adm'r of the estate of
Latimer Bailey, d'c'd, and the Marietta Chair Company, a manifest
error hath happened, to the great damage of the said W. N. Walton,
adm'r as aforesaid, as by his complaint appears."
In this Court at this term, "L. W. Ellenwood, by his counsel,"
moved to amend the writ of error by striking out in two places
therein the words "W. N. Walton" and substituting the words "L. W.
Ellenwood," and the defendant in error filed an affidavit of a
person who testified that he was well acquainted with L. W.
Ellenwood, who had filed the motion to amend this writ of error,
and that his Christian name was not L., but Lowell, and his legal
name was Lowell W. Ellenwood.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
By a provision of the first Judiciary Act of the United
States,
"No summons, writ, declaration, return, process, judgment,
or
Page 157 U. S. 345
other proceedings in civil causes in any court of the United
States shall be abated, arrested, quashed or reversed for any
defect or want of form,"
but the court shall proceed and give judgment according as the
right of the cause and matter in law shall appear to it, without
regarding any such defect or want of form except those which, in
cases of demurrer, the party demurring especially sets down,
together with his demurrer, as the cause thereof, and the court
shall amend every such defect and want of form, other than those
which the party demurring so expresses, and "may at any time permit
either of the parties to amend any defect in the process or
pleadings, upon such conditions" as it shall, in its discretion and
by its rules, prescribe. Act Sept. 24, 1789, c. 20, § 32; 1
Stat. 91; Rev.Stat. § 954.
At first it was treated by this Court as of course that a writ
of error which contained no return day might be amended by
inserting the day, and that the want of a date to the teste of a
writ of error, as well as the omission to state the district in
which the circuit court was held, might be made good by amendment,
when there was enough in the record to amend by.
Mossman v.
Higginson, 4 Dall. 12;
Course v.
Stead, 4 Dall. 22.
Afterwards, adopting a stricter rule, it was held that a writ of
error did not give this Court jurisdiction, and could not be
amended if the return day was wrongly stated,
Insurance
Co. v. Mordecai, 21 How. 195;
Porter v.
Foley, 21 How. 393, or if the real parties were
transposed, although, as the Court said:
"It is evident that the writ was intended to be sued out by the
plaintiff in the court below, and that the names of the defendants,
as plaintiffs in the writ, were used without their authority, for
the errors are assigned by the plaintiff, and the bond states that
a writ of error has been sued out by him, and the citation issued
by the judge is directed to the defendants, and served on their
counsel. And it is obvious that the writ in the name of the
defendants was an oversight by the clerk by whom it was
issued."
Hodge v.
Williams, 22 How. 87,
63 U. S. 88.
It was also held that a writ of error or an appeal could not
Page 157 U. S. 346
be amended if it described either party only as "the heirs" of a
person named,
Wilson's Heirs v. Life &
Fire Ins. Co., 12 Pet. 140; or by the name of one
person "and others,"
Deneale v.
Archer, 8 Pet. 526;
Davenport
v. Fletcher, 16 How. 142;
Miller v.
McKensie, 10 Wall. 582, or by the name of a person
"& Co."
Mussina v.
Cavazos, 6 Wall. 355,
73 U. S. 361;
The Protector,
11 Wall. 82. But in the last of those cases, decided at October
term, 1870, two Justices dissented upon the ground that the
amendment might and should be permitted under section 32 of the
Judiciary Act of 1789. 11 Wall.
78
U. S. 88.
21 How. above mentioned, and without referring to the early
case of Course v. Stead,
4 Dall. 22, above cited, held that a defect in the teste of a writ
of error could not be supplied by amendment. Moulder v.
Forrest, 154 U.S.Appx. 567.
Congress thereupon interposed, and by the Act of June 1, 1872,
c. 255, § 3, reenacted in the Revised Statutes, enacted that
this Court
"may at any time, in its discretion, and upon such terms as it
may deem just, allow an amendment of a writ of error when there is
a mistake in the teste of the writ, or a seal to the writ is
wanting, or when the writ is made returnable on a day other than
the day of the commencement of the term next ensuing the issue of
the writ, or when the statement of the title of the action of
parties thereto in the writ is defective, if the defect can be
remedied by reference to the accompanying record, and in all other
particulars of form, provided, the defect has not prejudiced, and
the amendment will not injure, the defendant in error."
17 Stat. 197; Rev.Stat. § 1005.
Under this act, the court has allowed a writ of error to be
amended, which bore a wrong teste and seal,
Texas & Pacific
Railway v. Kirk, 111 U. S. 486, or
contained a wrong return day,
Hampton v.
Rouse, 15 Wall. 684;
Semmes v. United
States, 91 U. S. 21;
National Bank v. Bank of Commerce, 99 U. S.
608; or no return day at all,
Atherton v.
Fowler, 91 U. S. 143;
Evans v. Brown, 109 U. S. 180, or
described
Page 157 U. S. 347
either party by the name of a partnership, and not by the names
of the individuals composing it,
Moore v. Simonds,
100 U. S. 145;
Gumbel v. Pitkin, 113 U. S. 545;
Estis v. Trabue, 128 U. S. 225;
United States v. Schoverling, 146 U. S.
76, or gave the Christian name of the plaintiff below
and defendant in error as Henry, when, as appeared from the record,
it should have been George,
Bank v. Mixter, 114 U.
S. 463, or named only one defendant in error when there
were more,
Knickerbocker Ins. Co. v. Pendleton,
115 U. S. 339. But
the amendment rests in the discretion of the court, and will not be
allowed if there is danger of prejudice to the adverse party or if
there is any other good reason against it, as for instance that the
main question presented by the record has been often decided by
this Court.
Pearson v. Yewdall, 95 U. S.
294.
In the present case, the writ of error, describing, with
gratuitous abbreviation, "W. N. Walton, adm'r of the estate of
Latimer Bailey, d'c'd," as the plaintiff in error, was manifestly
intended to be sued out by and in behalf of the administrator of
Latimer Bailey's estate. The record sent up with the writ of error
shows that the whole controversy was whether Ellenwood was legally
such administrator, in place of Walton, by whom the original action
had been brought, and that the exceptions to the decision below
were taken and tendered, and the bond to prosecute the writ of
error was given, by Ellenwood. The case is clearly one in which
"the statement of the title of the action or parties thereto in the
writ is defective," and in which "the defect can be remedied by
reference to the accompanying record," and the amendment asked for
cannot prejudice the adverse party, and the merits of the case have
not been discussed by counsel. The amendment should therefore be
allowed.
The description of Ellenwood, like that of Walton, both in the
record and in the proposed amendment, gives him no Christian name
beyond initial letters. It is true, as argued by his counsel, that
he might have had no Christian name.
Breedlove
v. Nicolet, 7 Pet. 413,
32 U. S. 431.
But the affidavit filed in opposition to the motion to amend shows
that he had one,
Page 157 U. S. 348
and that his real name was Lowell W. Ellenwood. The description
of him by initials is therefore but an illustration of a loose and
careless practice, which this Court does not countenance.
Monroe Cattle Co. v. Becker, 147 U. S.
47,
147 U. S.
58.
The result is that the writ of error is to be amended by
inserting the name of Lowell W. Ellenwood in the place of the name
of W. N. Walton wherever that name appears in the writ of
error.
Amendment allowed.
