Bayley

W. Allen, J. Two questions are presented by these exceptions : First, Is it within the discretion of a court of record to allow an amendment to the return of a levy of an execution issued by it, by inserting a new and material fact, without proof of the truth of the fact? and second, Was there any evidence of the truth of the proposed amendment offered in the court below, upon which the court, in the exercise of a judicial discretion, could have allowed it? Upon the first question, we have no doubt. The allowance of amendments to its records is within the discretion of every court of record; but it is a judicial discretion, to be exercised under the rules of law; and a court has no authority to alter its records except to amend them so that they shall conform to the truth. It must appear that a proposed alteration is an amendment before the court can have any discretion to authorize it. [460] In Wolcott v. Ely, 2 Allen, 338, it was held that it was not competent for a court to allow one amendment to a return necessary to make a levy valid, when there was another error in the return which, if corrected, would show that the levy was invalid. Mr. Justice Hoar says: “ But we do not think it within the proper limits of judicial discretion to allow an officer to amend a formal defect in his return, when facts are untruly stated in other parts of the return; and when, if the whole return were amended so as to conform to the truth, the amendment would be ineffectual and useless. If any amendment is allowed, it must show the whole truth.” See also Hovey v. Wait, 17 Pick. 196; Pratt v. Wheeler, 6 Gray, 520. The second question is, whether there was any evidence of the truth of the proposed amendment, upon which the court, in the exercise of its discretion, could allow it. The ruling was, that there was nothing upon which the court could exercise its discretion ; and we think it was correct. The evidence offered of the truth of the amendment, in the first instance, was the affidavit of the petitioner; and, upon that, the amendment was allowed, without notice to any party in interest. Subsequently, the debtor applied to the court to have the order allowing the amendment annulled, and, upon a hearing, was allowed to call the petitioner, the officer who sought leave to amend his return, as a witness. It is objected, on the one side, that the court erred in not ordering notice and a hearing before the amendment was allowed; and, on the other, that the court had no authority to permit the debtor to appear and object to the allowance of the amendment. Upon a proceeding looking to the amendment of its own records, while the court might act without notice to any one, it was certainly within its discretion to hear any party interested, and any competent evidence. In Balch v. Shaw, 7 Cush. 282, the court say: “ Surely a court of record need not give notice to all the world to come in and show cause why it should not make its record conform to the truth of the case. Any party, who supposes he can show such cause, should apply to the court to have the record set aside or expunged, after it is made.” The affidavit of the petitioner must be taken in connection with his testimony at the hearing; and the question is, whether, [461] upon his testimony alone, without considering the other evidence put in by the debtor, there was sufficient to justify the court, in the exercise of its discretion, in finding that the amendment was true. The Gen. Sts. c. 103, § 41, provide that “the officer shall give notice in writing of the time and place of sale to the debtor, if found within his precinct.” This requires personal service of the notice upon the debtor, and service by leaving the notice at his residence is in no case authorized. Parker v. Abbott, 130 Mass. 25. The statute intends that notice shall be given to the debtor, if he is within the precinct, and the officer must use reasonable diligence to make the service. He cannot make a true return that the debtor was not found within his precinct, unless he made reasonable effort to find him. This is the meaning of the words “diligent search.” They express only what the law implies. The testimony of the petitioner shows that he did not use reasonable diligence to serve the notice. Upon hearing, at the residence of the debtor, that he was probably not in, the officer made no further inquiry or search, and no attempt to make any legal service of the notice. Upon these facts, he could not truly return that the debtor was not found within his precinct, because he had made no sufficient attempt to find him. As there was no evidence upon which the court could find that the proposed amendment conformed to the truth, it had no discretion to allow it. Exceptions overruled.