or, 'rut,. STATE OF AUKANsAs. 5;i7 Term, 1857_ Thompson Ys, McHenry, Tiunicsozy y s MeTIEsitv. A writ made returnable at a time other than that fixed b y law is irreo-ular, any may be abated_ ( Jones vs_ Austin, 16 Ark. Rep 336) ; ane this, though the law making a change in the time of returning such writ may not have been published An application to amend is within the sound discretion of the Circuit Court; and so, where the Circuit Court refused to permit an amendment of the original writ in a suit by attachment, the motion to amend being resisted by the defendant and no notice of the intended application being given to the garnishee, this Court will not control that discretion. Appeal from the Circuit Collet of Hempstead county. The Hon. Thomas Hubbard, Circuit Judge. Garland for the appellant, contended that the Ciourt erred in sustaining the demurrer to thc replication ; l■ccanse, the act of the Legislature changhtg the terms of the Circuit Court had not bcen published, at thc time of issiUng the writ, so as to affect the lights of the citizen. 1 Domat's Civil taw, p. 142, secs. 9 and 16, la. 114, sees. 1G and '23. That the Court- should always permit, ;imendments in furtherance of justice, and not intended to hinder or delay. McLac-pen vs Thu rim al, Eng . 212 t Id vs, S1tone ald, Tb. 478; Anthony Ar S. Humphries ad. use, 4 Ili. 17G; Kne, & Houston vs. State Bank, lii.185. S. H. Ilempstead for the appellee. 1, In this State laws take effect and operate fri um the date of their approval, unless a different day be prescribed for their commencement 7 Wheaton 211; 1 Gall 62: 4 Kent 454 to 458. 2, The discretion of the Circuit Courts in the -matter of amend-
538 CASES IN THE SUPREME COURT Thompson vs, McHenr y. January merits will not be reviewed unless sueh discretion has been grossly abused to the prejudice of a party. 5 Ark. 663; 3 Eng. 315; 4 Eng. 187; 13 Ark. 417; 14 Ib. 59. Mr. Justice SoiTT delivered the opinion of the Court. The appellant sued out an original attachment, against the appellee, in the Circuit Court of Hempstead county. The writ. was in the usual form, commanding the sheriff to attach the goods and chattels, q'tG., 0 f the defendant, and to summon him to appeal "on the 7th Monday after the 4th Monday of March, A. D. 1855," and also commanding the sheriff to summon "all and every person in whose hands or possession any such goods and chattels, etc , to appear, etc.. on the 7th Monday after the 4th Monday of March, A. D. I S55." The sheriff returned that lie had executed the weft Lv pci-sonal service on Jacob Seroggius as garnishee: but that he could find no propeltv of the defendant. When this writ was issued the term of the Hempstead Circuit Court was fixed by law to lie holden mu the 10th instead of the 7th Monday tifter the fourth Monday in March. The defendant in the attachment filed a plea in abatement interposing that objection, The plaintiff replied, admitting it to be true, but setting up that, at the time the writ was issued, the law changing the time of holding the Court, from the 7th to the 10th Monday, hail not been published in such a manner as to operate as notice of the new law, either to the clerk issuing tbe writ, or to the plaintiff's attorney, who directed it to be issued, The defendant demurred to the replicitiou. The Court sustained the demurrer, and quashed the writ: It appears, also, from the bill of exceptions, that the Court 'refused to permit the plaintiff tu amend the writ. The garnishee does not appear to have joined in the plea in abatement, or to have in any way appeared, or taken any steps whatever. The replication, it is obvious, set up nothing in avoidance of the plea. The demurrer was properly sustained: A writ made returnable at a time other than that fixed by law,
Or THE STATE OF ARKANSAS. 539 Term, 1857: Thompson vs: McHenry. is irregular and may be abated. Jones VS, Anstin, 16 Ark R. 226. With regard to the application to amend, which was refused and which, we suppose, was to insert the proper return term in the writ, in lieu of the 7th Monday improperly inserted, it would have been difficult to avoid a surprise had it been allowed, under the state of case as it appears in the record. The defendant in the attachment evinced no design to dispense with serviee of process and voluntarily nppear t o the action. (Ferguson vs. Ross,'.7■ Ark. R, 51S-519.) On the contrary he interposed that very objection. And the garnishee does not seem to have been even a party to that proceeding, much less did he voluntarily appear. He, at any rate, would have been sorely surprised hail the writ been so amended as to have placed him in an attitude of default: because there is nothing in the record to indipate, in any manner that he had notice of the application. Such amendments are allowed only in furtherance of justice, and should always be refused when injustice is more Ii cely to be done. Hence, as we said in the ease of Mitchell vs. Conley, 13 Ark, R. 420, "no general rule can be safely laid down to govern amendments in practice. - and 'that they Ought to be so allowed as not to operate as a snrprise either in matter of law or -hot, efld always uppit n oti c e to the party to bc affeeted by them." Had these parties been previously notified of 111e intended application to amen& the writ, or had voluntarily appeared to that application, the Conit having powel, might have allowed the amendment upon such terms as would have worked no surprise and no injustice. As the case appears, however. in the record, we see no good reason for any sound conclusion that the Court below abused its imdoubted discretion in the premises; and shall accordingly affirm the judgment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.