Barton Bros. v. South Jordan Co-operative Mercantile & Manufacturing Institution

Bartch, J.: This is a case in which one attachment creditor of the defendant corporation claims a lien on the property superior to . that of another such creditor. It appears from the record that on January 8, 1894, the Zion’s Co-operative Institution brought an action against the South Jordan Co-operative Mercantile Institution to recover the sum of $1,893.19, and levied, through the United States marshal, a writ of attachment upon a stock of merchandise in the defendant’s possession. On January 11, 1894, judgment was entered in favor of the plaintiff and against the defendant. On January 12, 1894, the appellants commenced an action against the same defendant to recover $570.70, and by the same officer attached the same merchandise. After judgment had been rendered for the plaintiff in the first action, and suit had been brought by the appellants, it was discovered that a mistake in the name of the defendant had been made in both actions, by omitting the words “ & Manufacturing ” after the word “Mercantile,” and before the word “Institution.” On January 15, 1894, the appellants filed an amended complaint, so as to correct the error caused by the omis"sion, and on the next day levied an alias writ of attachment on the same goods by the same officer. On January 17, 1894, the plaintiff in the first action, by consent and agreement in open court of all parties to that action, and [349] by order of court, amended its complaint by inserting the omitted words, and amended the record so as to state the true name of the defendant; and on the same day the United States marshal readvertised the goods levied upon for sale under execution in the first action, and it appears, as a result of the sale under that execution, he had in his possession §800. On January 27, 1894j the appellants obtained judgment for their claim, and on the 29th execution was issued therefor to the same officer. On February 15, 1894, the appellants moved the court for an order directing the officer to apply a sufficient amount of the money in his hands on the execution in favor of the appellants to satisfy their judgment. • This motion was denied, and an appeal prosecuted to this court. The only material question raised is whether the appellants, under the facts and circumstances apparent from the record, have a paramount lien on the funds in the hands of the officer. It is contended by counsel for appellants that there was an attempt to substitute a new defendant after judgment, and that neither at the time of the amendment, nor at the hearing of appellants' motion to apply the money in satisfaction of their judgment, was there any evidence introduced to show the identity of the South Jordan Co-operative Mercantile Institution and the South Jordan Co-operative Mercantile & Manufacturing Institution. If there was any doubt on the point of identity, such doubt would seem to have been removed by the affidavit of one of the counsel for the appellants, as shown by the record, a portion of which reads as follows: “Affiant further states that there is no such corporation as South Jordan Co-operative Mercantile Institution, but that the true name of the corporation whose property was attached herein was and is South Jordan Co-operative Mercantile & Manufacturing Institution.” This is plain and to the point, and agrees perfectly with the amendment. [350] With such an affidavit in the record, how can counsel question the identity of the defendant? If the amendment worked no change of defendant, how could it alter the status of the several parties to the proceedings? It coúld produce no hardship on the appellants, for it left them in the same position in which they were before it was made, — junior lienors. Nor does it appear that they were misled by it, for they were acquainted with all the facts in relation thereto. Nor was there any claim of fraud or collusion between the plaintiff and defendant in the first action. The omission was simply a mistake which both attachment creditors innocently made. It was technical, merely, and attended with no serious consequences. The defendant was present in open court, and consented to the amendment. It thereby waived its right to object to the action of the court, and a subsequent attaching creditor can take no advantage because of such waiver, unless it causes substantial injustice to such creditor. It was within the sound discretion of the court, under all the circumstances, and in furtherance of justice, to allow the amendment to be made, and to order the record to be amended nunc pro tunc. A district court has the power to amend its records, even after the term; and the court below having exercised its discretion, upon its own view of the facts, this court will not interfere. An amendment to a complaint, as in the case at bar, which causes no increase in the amount to be recovered, and introduces no new cause of action, will not dissolve an attachment. 2 Comp. Laws Utah, 1888, § 3256; Drake, Attachm. §§ 273, 287; Ang & A. Corp. p. 77, § 4; Slicer v. Bank, 16 How. 576; Jones v. Lewis, 47 Am. Dec. 338; Barber v. Briscoe, 9 Mont. 341, 23 Pac. 726; Cartwright v. Chabert, 49 Am. Dec. 742; Frink v. Frink, 80 Am. Dec. 189; Rudolf v. McDonald, 6 Neb. 163; King v. Burnham, 129 Mass. 598; In re Schroeder’s Estate, 46 Cal. 305. It is the duty of [351] the court, in every stage of an action, to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties. 2 Comp. Laws' Utah, 1888, § 3258. We are of the opinion that the amendment in this case was not fatal to the lien of the first attachment creditor, that his lien is paramount to that of the appellants, and that the court did not err in its ruling. The judgment is affirmed. Miner and Smith, JJ., concur.