Gavitt v. Doub

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring.

This is an action against the defendant, Sheriff of Marin County, to recover damages for the sale of certain personal property on an execution against the plaintiff, and claimed by him as exempt from levy and sale. The defendant recovered judgment, from which, and from an order refusing a new trial, the plaintiff appeals.

The Court below permitted the defendant to amend his answer by adding an averment of the levy upon the property, and this is assigned as error. The amendment was properly allowed, and this point is therefore overruled.

On the trial the defendant offered in evidence an amendment to his return upon the execution, which had been made in pursuance of an order of the Court, on that day or the day before, to which the plaintiff objected. The material part of the amendment to the return was that which included in the levy and notice of sale a yoke of oxen and two cows, which the plaintiff claims were exempt fromexecution. It is not contended that this property was not in fact levied upon and sold under the execution, or that the return as amended is not in strict accordance with the facts; nor does it [81]appear that the plaintiff was injured in any way by allowing the amendment to be made. Courts exercise great liberality in allowing officers to amend their returns so as to make them conform to the true facts, and to correct errors and mistakes; and if in thus amending the officer makes a false return, he is liable therefor, and such amendments are often allowed after a great lapse of time. (Thatcher v. Miller, 11 Mass. 413; Adams v. Robinson, 1 Pick. 461; Haven v. Snow, 14 Id. 28; Johnson v. Ray, 17 Id. 106; Burk v. Hardy, 6 Greenl. 162; Gilman v. Stetson, 4 Me. 124; Williams v. Rogers, 5 J. R. 163 Malone v. Samuel, 3 A. K. Marsh, 350 ; Woodward v. Harbin, 4 Ala. 534.) In one of these cases a return was allowed to be amended after the lapse of twenty years, and in another after six years.

In Maherin v. Brackett (5 N. H. 9) an officer having an execution in a case where bail had been given, returned that he had given notice to the bail, but omitted to make a return of non est inventus as to the principal, and it was held that he might amend, and insert a return to that effect in order to charge the bail. In Smith v. Hudson (1 Cowan, 430) the Sheriff had sold three parcels of land under an execution, but in the certificate of sale which he had made and filed, he omitted one of them by- mistake, and the Court ordered him to amend by inserting therein the omitted tract. In Smith v. Daniel’s Executors (3 Murphy, 128). the Sheriff had sold some property on execution, which in fact belonged to a third party, who had sued him and recovered the value, and the Court allowed hiin to amend his return by striking out the levy and sale of the property, and return the execution “ no property found,” and withdraw the sale money which he had paid into Court. In the present case the Court properly allowed the amendment.