President of the State Bank v. Buckmaster, 1 Ill. 176, 1 Breese 176 (1826)

June 1826 · Illinois Supreme Court
1 Ill. 176, 1 Breese 176
The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error

The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error.

ERROR TO MADISON.

The omission in a writ, of the words, “ The people of the state of Illinois to the coroner,” &c., is a mere misprision of the clerk and is amendable. (1)

This was a scire facias brought by the plaintiffs in the circuit court of Madison county, against the defendant, then sheriff of said county, to foreclose a mortgage executed by him to the State bank. A motion was made by defendant’s counsel, to dismiss the suit on the ground of irregularity in the scire facias, the words, “ the people of the state of Illinois to the coroner of Madison county,” having been omitted. A motion was also made by the plaintiffs’ counsel to amend the scire facias, which the court overruled, and sustained the motion of defendant to dismiss. The errors assigned are, in dismissing the scire facias and in disallowing the amendment.

Opinion of the Court by

Justice Lockwood.

The only question submitted in this case is, whether the court ought to have suffered the amendment asked for. The mistake committed in the scire facias is clearly a clerical error, and upon the principle assumed by late cases, that the court will amend all such errors, the court below ought to have permitted it. The mistake in this case could not lead to any misapprehension or in the least tend to surprise the party. The doctrine of amendments is well calculated to advance justice and prevent delay. The constitution requiring* that writs, &c., shall run “in the name of the people of the state of Illinois,” seems to be directory to the clerk or person issuing the process, and the omission of the words is a mere misprision of the clerk and *177ought not to work an injury to the plaintiffs. ' The court therefore erred in dismissing the scire facias and entering judgment against plaintiffs for the costs. The judgment is reversed with costs, and the cause remanded to the circuit court of Madison, for further proceedings, (a)

Cowles, states’ attorney, for plaintiff in error.

J. Reynolds, for defendant in error.

Judgment reversed.