Taylor v. Moss

Smith, P. J.

The record in this case is essentially the same as that in the case between the same parties, already decided at the present term. In this case however the circuit court held the alternative writ insufficient although in substance and in form the same as in the other case, where it was ruled to be sufficient.

When the court had held said writ defective and insufficient in its allegations the relator offered to hie an amended writ to meet the views of the court which offer was refused.

The court thereupon dismissed the proceeding, from which judgment the relator appealed to this court.

We think as the alternative writ in this case is in substance the same as the one we held to be sufficient in the case just referred to, and that it should not have been quashed. And if not free from technical objections, the court should have permitted the relator to have obviated the same by amendment. The statute (R. S., art. 6, ch. 59,) makes ample provision in respect to amendments in proceedings of this kind.

Under the practice as it prevailed in the common-law courts of Great Britain this ruling of the circuit court was well enough, but under our system of practice it was erroneous.

The court should have permitted the amendment on such terms as to it seemed just. What is said in the opinion in the other case, already referred to, in most part is applicable here.

We will reverse the judgment of the circuit court, with directions to allow the relator to file an amended writ, if he so desires, and then to proceed with the case in conformity to law. In this conclusion,

all concur

and it is so ordered accordingly.