Thomas v. Whitlegge

In Zabriske v. Wilder, 12 Daly, 527, it was held by this court at special term that the justice could not make a supplementary return amending or altering his original return without applying to this court for leave, in order that notice might be given to the parties, so that neither would be surprised when the case came on for argument. The right of the justice, upon his own motion, to make such supplementary return by leave of the court, was not questioned. Where one party obtains an order to show cause requiring the justice to amend his return in certain particulars, or show cause to the contrary, the justice is authorized to immediately file a return so amended, without waiting for a final order upon the motion, if the facts, in his judgment, require such amendment. He has the leave of the court to do so, and the service of the order to show cause upon the other party to the action, even after the amended return is filed, (but before the return-day, of course,) is sufficient notice to such other party, whose duty it is to attend upon return-day to hear the answer of the justice to the application, and who cannot, therefore, be surprised by the amendment. Here the justice availed himself of the leave given by the order to show cause and filed the amended return. The opposite party, having heard of it, moved to set aside the order to show cause, and also to set aside the amended return, on the ground that the order was irregular, and grants a contested motion ex parte, and was fraudulently obtained. Whatever irregularity or fraud there might be in obtaining the order, it could not affect the return made by the justice, who is required to look no further than the order granting him permission to make *780an amended return, and to the justice and propriety of the amendment which he was authorized to make; so that, even if the order were vacated for irregularity or fraud, the amended return could not be vacated. The remedy of the party aggrieved is to mpve for a further amended return, or to proceed against the justice for a false return. ' The order was not irregular. It is a practice to institute the proceeding to procure an amended return by an order to show cause in the alternative; and, as the order was not returnable in less than eight days, it was not irregular in the particular respect complained of. The order did not decide the motion in advance. The fact that the justice was given leave to comply with the alternative portion of the order was not an adjudication by the court upon a contested motion. If the justice complied, there was no contest, so far as he was concerned; and there was no adjudication against appellant, because he cannot contest this question with the justice upon the motion. The justice has the right to amend his return by leave of the court upon notice. The order must be affirmed.