Judd v. Smoot

ELLISON, J. — This is a proceeding founded on a motion asking that G. W. B. Garrett, sheriff of Barton county in 1891, be permitted to amend his return of service of Ella Smoot in a cause pending against her and her husband in the circuit court of that county. The trial court granted the motion and permitted the amendment. A trial was had in which oral evidence was heard and records were introduced. Some objections and exceptions were taken by the appellant heréin to the rulings of the court on the evidence, and the action of the court in sustaining the motion was excepted to. A bill of exceptions was allowed and filed, and appeal taken. We can not say, as a matter of law, that a sheriff can not be allowed to amend his return on a summons ten years after his term has expired. Such a showing may be made as will justify a court in permitting such amendment in the exercise of its judicial discretion. Defendant, however, contends that the evidence shows an abuse of discretion by the trial court. We have examined the evidence and find the point not well taken. We are satisfied to the contrary. The [292] authorities cited by defendant are not considered as opposing this view. It is a part of defendant’s contention that an amendment could not be made except that it be based on record evidence, such as justifies entering judgment nunc pro tunc. We do not think that- this is necessarily so. An amendment of a return of writ of summons implies that there were a summons and a return. The right to amend the return may be established by matter in pais. The statute does not require record evidence (sec. 610, R. S. 1899), and the authorities in brief of respective counsel do not. The judgment is affirmed. All concur.