Allen v. Allen

The defendant asks for too much on this motion. He has acted as though the plaintiff’s first name was Hannah, and therefore is not entitled to have the summons set aside. But the complaint was irregular, because the title of the action in it did not correspond with that contained in the summons, and it must be set aside. The defendant should only have moved to set aside the complaint, and then he would have been regular himself; but as he has asked for more than he is entitled to, he cannot have costs of his motion.

A summons is a process of the court, and it cannot be amended without leave of the court. The course which the plaintiff should have pursued was, to have moved the court for leave to amend the summons before she served her complaint. But she now makes a case on her part that entitles her to *250amend the summons; and leave is given her to amend the summons within ten days, by striking out the name Hannah, and inserting Fanny; and she may have the like time in which to serve a new complaint.