JAN. TERM, 1857. THOMPSON V. MCHENRY. 'THOMPSON p537 V. MCHENRY. A writ made returnable at a time other than that fixed by law is irregular, and may be abated (Jone., r. Austin, 16 Ark. Rep. 336); and this, though the law making a change in the time of returning such writ may not have been published. An application lo amend is within the sound discretion of the circuit court; and so, where the circuit court refused tu permit an amendme -nt of the original writ in a suit by attachment, the motion to amend being resisted by the defendant and no no-
THOMPSON V. MCH ENRY. VOL. 18 tice of the intended application being given to the court refused to permit the plaintiff to garnishee, this court will not control that discre-amend the writ. tion. The garnishee does not appear to Appeal from the Circuit Court of Hemp-have joined in the plea in abatement, stead county. or to have in any way appeared, or tak-ON. THOMAS HUBBARD, Cir- en any steps whatever. The replication, ti cuit Judge. it is obvious, sets up nothing in avoid - ance of the plea. The demurrer was props S. 11. Hempstead, for the appellee. erly sustained. A writ made returnable 5389 *SCOTT, J. The appellant sued at a time other than that fixed by law, -out an original attachment, against the is irregular and may be abated. P539 appellee, in the circuit court of Hemp-Jones v. Austin, 16 Ark. R. 336. stead county. The writ was in the usual With regard to the application to form, commanding the sheriff to at-amend, which was refused, and which, tach goods and chattels, etc., of t he de-we suppose, was to insert the proper fendant, and to summon him to appear term in the writ, in lieu of the 7th Mon-"on the 7th Monday after the 4th Mon-day improperly inserted, it would have day of March, A. D. 1855," and also been difficult to avoid a surprise had it commanding the sheriff to summon been allowed, under the state of case "all and every person in whose hands as it appears in the record. or possession any such goods and chat-The defendant in the attachment tels, etc., to appear, etc., on the 7th evinced no design to dispense with serv-Monday after the 4th Monday of March, ice of process and voluntarily appear A. D. 1855." to the action. (Ferguson v. Ross, 5 The sheriff returned that he had exe-Ark. R. 518-519.) On tne contrary, he cuted the writ by personal service on interposed that very objection. And Jacob Scroggins as garnishee, but that the garnishee does not seem to have he could find no property of the de-been even a party to that proceeding. fendant. much less did he voluntarily appear. When this writ was issued the term He, at any rate, would have been sore-of the Hempstead circuit court was ly surprised had the writ been so fixed by law to be holden on the 10th amended as to have placed him in an instead of the 7th Monday after the 4th attitude of default; becaqse there is Monday in March. nothing in the record to indicate, in The defendant in the attachment any manner, that he had notice of the filed a plea in abatement interposing application . that objection. The plaintiff replied, Such amendments are allowed only admitting it to be true, but setting up in furtherance of justice, and should al-that, at the time the writ was issued, ways be refused when justice is more the law changing the time of holding likely to be done. Hence, as was said the court, from the 7th to the 10th Mon-in the case of Mitchell v. Conley, 13 day, had not been published in such a A2 k. R. 420, "no general rule can be manner as to operate as notice of the safely laid down to govern amend-new law, either to the clerk issuing the ments in practice," and "that they writ, or to the plaintiff's attorney, who ought to be so allowed as not operate directed it to be issued. The defendant as a surprise either in matter of law or demurred to the replication. The fact, aud always upon notice to the court sustained the demurrer, and party to be affected by them.' quashed the writ. It appears, 'also, 1. On amendment of process,see NIcLarren v.Thur-from the bill of exceptions, that the man, S-315, note I.
-JAN. TERM, 1857 . Had these parties been previously notified of the intended application to amend the writ, or had voluntarily appeared to that application, the court having power, might have allowed the amendment upon such terms as would have worked no surprise and no injustice. As the case appears, however, iu the record, we see no good reason for any sound conclusion that the court below abused its undoubted discretion in the premises; and shall accordingly affirin 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.