Chicago Planing Mill Co. v. Merchants' National Bank

Mr. Justice Scholfield delivered the opinion of the Court: This case was considered by us at our September term, 1877, and an opinion was filed, and judgment rendered thereon, subsequently, in vacation. Planing Mill Co. v. National Bank, 86 Ill. 587. By inadvertence, the judgment was made to affirm the judgment of the Superior Court, Avhen it was, in reality, intended to affirm only an order of that court allowing an amendment of the sheriff’s return to the summons, and to reverse the judgment of the Superior Court. Upon having our attention, called to this mistake, we, of our own motion, ordered a rehearing of the cause; and Ave have heard additional arguments on the question, of avIiether it Avas proper to allow the amendment to be made to the sheriff’s return to the summons. The question has been thoroughly discussed on both sides, and we have given such careful and deliberate consideration to it as we have deemed necessary to a correct conclusion. That the return, as originally made, was sufficient, and that as amended, it is insufficient to sustain the judgment, is fully shoAvn by the former opinion. In the earlier cases in this court, it was held the circuit court may authorize a sheriff to amend his return, either before or after the rendition of a decree or judgment, and this, too, Avithout notice to the opposite party of an intention to apply for leave to amend. Montgomery v. Brown, 2 Gilm. 581; Moore v. Purple, 3 id. 152; Morris v. Trustees, etc., 15 Ill. 266; Johnson v. Donnell, id. 97; Turney v. Organ, 16 id. 43; Coughran v. Gutcheus, 18 id. 390; Dunn v. Rodgers et al. 43 id. 262; Hawes v. Hawes, 33 id. 286 ; Toledo, Peoria and Warsaw Railroad Co. v. Butler, 53 id. 323. In O’Conner v. Wilson, 57 Ill. 226, this doctrine Avas, however, in part, overruled, and it Avas there said: “ The true rule of practice, iipon much and mature reflection, Ave think, should only permit such amendments as a matter of course; and without notice, during the term at which the cause is determined.” Since then, it is held amendments may be made, by the sheriff, to his return, after the expiration of the term at which the cause is determined, only upon notice to all parties interested. National Ins. Co. v. Chamber of Commerce, 69 Ill. 22; Mass. Mut. Life Ins. Co. v. Kellogg, 82 id. 614; Barlow v. Standford, id. 298. . In each of the foregoing eases, and, so far as we have been able to discover, in all the cases hitherto decided by this court, in which the sheriff has been permitted to amend his return after judgment, the amendment has been in affirmance of judgment; and the question we are now to consider is, was the Superior Court authorized to allow an amendment, which, instead of being in affirmance of judgment, creates such error as necessitates its reversal, by this court? Under the English statutes, and decisions thereon, no amendment was admissible save in affirmance of judgment. Blackamoer’s Case, 4 Coke’s R., part 8, p. 452, side p. 156 a; 1 Tidd’s Practice (4th Am. ed.) 696; Wooden & Hazel’s Case, 1 Leonard, 134; Thompson v. Crocker, 1 Salkeld, 49; Walker v. Slackoe, 5 Modern, 69. And this seems to -be the ruling in every State of the Union where the question has been directly the subject of adjudication. Stewart v. Springer, 45 Mo. 113; Kitchen v. Reinsky, 42 id. 427; McClure v. Wells, 46 id. 311; Grower v. Smith. 49 id. 318; White River Bank v. Downer, 29 Vt. 332; Davis v. Putnam, 5 Gray, 321; Hopkins v. Busch, 3 Ga. 222; Moyer v. Cook, 12 Wis. 335; Newhall v. Provost, 6 Cal. 85; Powell v. Commonwealth, 11 Gratt. 822; Dorsey v. Pierce, 5 Howard, (Miss.) 173; Hughes v. Lapice, 5 Smedes & Marshall, 451; Englis v. Furness, 3 Ab. Pr. Rep. 82; Gasper v. Adams, 24 Barb. 287. But counsel contend that the decisions in England, and in the other States, bearing upon the question, depend so much upon matters of local practice, and special statute, that they are not of controlling authority here; and they say that the fourth section of our statute of “Amendments and Jeofails ” expressly authorizes the amendment of sheriffs’ returns, according to the truth, whether that be in affirmance of judgment, or to produce error therein. We can not concur in this view. A statute allowing such amendments would, in our opinion, be a most dangerous one to the stability of judgments, and we shall not assume that the legislature intended so to enact, in the absence of phraseology admitting of no other reasonable construction. The first section of our statute of “Amendments and Jeofails” empowers the court in which an action is pending, to “ permit amendments iu any process, pleading or proceeding in such action; either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.” The word “return” does not occur in this section. The second section includes “ returns,” and authorizes their amendment after judgment, but then only in affirmance of judgment. It is as follows: “After judgment rendered in any cause, any defects or imperfections in matters of form, contained in the record, pleadings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court in affirmance of the judgment, so that such judgment shall not be reversed or annulled.” * * * The fourth section is: “All returns by any sheriff or other officer, or by any court or subordinate tribunal, to any court, may be amended in matters of form, or according to the-truth of the matter, by the court to which such returns shall be made, in its discretion, as well before as after judgment.” It is to be kept in mind that no authority is given, in either of the preceding sections, in express terms, to amend returns before judgment. It was thought necessary, in' the second section, although the word process had been previously used, to expressly name “ returns ” as being amendable—and it is but fair to assume that the same idea obtained in the enactment of the first and fourth sections—that is, that to embrace returns they must be specifically named—and, not having been named in the first section, nor their amendment provided for before judgment in the second section, it was necessary to confer this power of amendment in the fourth section. The concluding words of the fourth section are strongly confirmatory of this view. They are, “ as well before as after,”—from which the only reasonable implication is; provision for amendment “after,” already exists, but it is necessary now to confer power to amend before. The words are not equivalent in meaning to “either before or after,”—but clearly imply the “conferring of a like power to do before that which there is already power to do after. This view leaves the second section, only, applicable to amendments to returns after judgment; and, as has been seen, they can, by virtue of it, only be made in affirmance of judgment. The order of. the court allowing the amendment to the sheriff’s return was erroneous, and it is reversed; but the judgment below must be affirmed. Judgment affirmed. Cbaig, J.: I do not concur. In my opinion, the fourth section of the statute cited in the opinion authorized the amendment of the sheriff’s return.