The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-20
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
OCTOBER TERM, 1866.

/
+. s. Hunt, Admir- )Appeal from CHANGER,
No. 10000 vs.. SCourt of Madison coun
W.T., Walker,et al. )ty
The Opinion Of The Court Delivered b
Justice Harris.
As the merits of this case as, now presen
ted, are not before us, IL will be sulficien
to refer to such facts only as concerns th,
questions ofpractice, upon which its deter
mination must depend.
The transcript shows, that on the 24tl
February, 1851, the complainant filed hi
bill in the Superior Court of ChaDcery
which Il is admitted was fatally defective
The bill was not sworn to. On the 6tl
December, 1852, the complainant filed what
Is denominated in the record an amendment
of the original bill, without leave of the
court, without signature except the name
t"Potter," on the back, and without notice
to the defendants. On the Goth Oct. 1857
an order was made by the Superior Court Of
Chancery transferring the cause to the
Chancery Court of Madison county, and on
the 29th January, 1858, all the papers in the
chse, including the amended bill, together
with certified copies of the entries on the
general docket, and orders from the minutes
of the Superior Court of Chancery were filed
in'the Chancery Court of Madison county
among the entries on the general docket so
certified to the Chancery Court of Madison
county, is an entry showing the date OF
filing of the amended bill On the 2lst OF
ADril, 1859, an entry was made ON the min.
utes Of the Chancery Court of Madison coun.
ty suggesting the death of complainant
Boisgerard On the Goth September, 1859,
bill of revivor, was filed by plaintiff in
error, setting out all the facts, stating the
substance Of both the original and amended
bills, and making them exhibits and parts
OF the bill of revivor praying that all the
parties to the original and amended bills be
made parties to this bill of revivor, and that
due process issue and publication be made
and that the suit be revised in his name, and
further urging the prayer ofthe original bill
and that receiver may be appointed, and
an account taken and for other or further
relief Process was duly issued and served
on the defendants in error, and the bill was
taken as confessed as to them by order of
the Chancery Court of Madison county on
the oath April 1860. And on the 23d April
1861, q decree was rendered in said
court-which rocites that the cause
having been set for final hearing
by the defendants, VIM Walker Willie
Lyons, and b. Chambers, as to said defend
ants at a previous day of this court, and the
same having been argued and submitted by
said defendants, &c, and it appearing to the
court that the original bill in this case sets
forth no sufficient cause of action, against
said defendants, and that paper found
among the papers in this cause purporting
to be an amended or supplemental bill, has
never been filed by permission of the court,
and that said defendants have had no notice,
of the same 1t is therefore ordered that
said paper purporting 10 be an amended and
bill, be and the same is hereby
stricken from the file and disregarded, and
that said original bill be and the same is
hereby dismissed at the cost of complainant
10 be taxed
From this decree an appeal was prayed
by complainant, and the cause brought to
his court.
The regularity of these proceedings and
ihe propriety of this decree, striking the
amended bill from the file, ION final hearing
IF the cause, set down for hearing by the
defendants themselves, on the bills and pro-
,onfesso, against them, and also the pro-
lriety of the decree Diminishing the bills, are
The questions presented by the assignment
If errors.
1t is a general principle that no alteration
IAN be made in any pleadings or other mat
,er, after it has been filed, and by that means
becomes q record of the court, without the
sanction of previous order, or rule of court
it, without special leave. Bar
'ours ch, Pr p 209, Daniel ch. Pr. 468.
Amendments, as general rule are in the
discretion of the court, though allowed with
great liberality, until the proofs are closed,
kept where the bill is upon oath, see l,
Daniels CHI Pr. p, 454-5 and notes and au-
horities cited.
In this case no order or leave of the court
o file this amendment appears, nor does it
ppNRr that any notice of the amendment
vas formally served on the defendants. But
is manifest from the whole proceedings
hat these defendants, have SO neglected to
vail themselves of these objections, that to
How them to lie made on the final hearing
caring by the defendants themselves would
perate as surprise and great hardship
pom the eomplainants.
10 say nothing OF the date of the amend
lent and previous entries-in the record
no bill OF revivor sets out the amendment
full and makes it a part of the bill, and |
Ills for answer.
The bill was formally served by subpoena
q the defendants, and on failure to answer,
pro eonfesso taken and entered against |
lem. They not only make no objections to
re amended bill as originally filed, or-to the
II OF revivor, of which it became q part,
1t after pro confesso against them, they,
,oniSelFes, Seb uoWn Jne cause as amended,
ithout objection thereto, for final hearing,
BY this laches, they must be held to have
alved all objections to the amendment, and,
final heariag, cannot be permitted to treat
as nullity, Story Eqr pl edit. p 1854.
1873, Cooper's Eq. pl p. 1882. The chancel-
:, therefore, erred IN striking this amend
mt from the files and rendering decree
,missing compliments bill.
The granting or refusing amendments to
Is resting in the discretion of the Chancel-
:, when party seeks to amend his bill, he
ould, regularly, accompany his motion for :
We to file an amended bill with the amend
mt sought to be filed in due form, so that {
Court may be able to Judge of the pro-
ETY. of allowing the amendment; and no
endment should be allowed by the Court
SO regularly presented and allowed by +
special order.
n the case before us. the cause was not
dy TOR hearing as to all the parties-some 2
whom had not been served with process
tead of rendering a final decree, the Court
Md have remanded the cause to the rules
III service had been perfected on all pro-
parties, the pleadings settled, and the p
SO properly prepared for final hearing. o
let the decree be reversed and cause re- 4
lded for further proceedings i'm accord. !"