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5 Neb. 491

Struthers v. McDowell

Nebraska Supreme Court

Decided January 15, 1877

Nebraska Supreme Court · decided 1877-01-15

This was a suit in the district court for Jefferson county, brought by defendants in error against plaintiff in error and R. B. Wallace as partners, under the firm name of Struthers & Wallace. Tried below before Pound, J. An attachment was issued in the cause. The affidavit filed in said cause as the basis for the attachment proceedings lacked a venue; Struthers, appeared specially and made a motion to set aside, dissolve, and discharge the attachment.

Key passage — most relied on by later courts

““Under our statute of amendments great latitude is given to the court in permitting even material defects to be remedied, especially where they were occasioned by mistake, or are the result of oversight, and it can be seen that by so doing, substantial justice will be done. And this rule is not limited to pleading merely, but is applicable to all proceedings in civil actions.””

quoted by 1 later decision, including Shoaff v. Gage

Good law ✅— No negative treatment on recordhow we know

Decided 1877-01-15

How this case has been cited

Cited by 6 later decisions — most recently November 1958

1 district · 5 state decisions

30187718801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Lake, Ch. J.

¶1The first error assigned is the overruling of the motion made to quash the summons. This point was not urged in argument, and we suppose it was abandoned. At all events, the objection to the sufficiency of this writ was not warranted, it being in all respects in strict conformity to the requirements of the statute.

¶2The other objections all relate to the affidavit on which the order of attachment was issued; the chief of these being that no venue was given. It is also objected that the court erroneously permitted the notary public before whom the affidavit was made, to insert the proper venue, according to the fact, after a motion to quash the attachment had been filed, and thereupon overruled the motion.

¶3It is not pretended that the facts set forth in the affidavit were not ample to justify the issuing of the writ, but it is insisted that the omission of the venue was a fatal defect; not amendable and rendering the order of attachment absolutely void. This position cannot be sustained. In the first place the venue is really no part of the affidavit, its office being simply to show by an inspection of the instrument whether it was made within the jurisdiction of the officer who administered the oath. Ve are not aware of a single case that goes so far as to hold that such a defect may not be amended, so as to show the fact, where the request to do so is properly made.

¶4Under our statute of amendments great latitude is given to the court 'in permitting even material defects to be remedied, especially where they were occasioned by mistake, or are the result of oversight, and it can be seen that by so doing, substantial justice will be done. *494And this rule is not limited to pleading merely, but is applicable to all proceedings in civil actions. Irwin v. Bank of Bellfontaine, 6 Ohio State, 81; Campbell v. Whetstone, 4 Ill., 361; Langworthy v. Waters, 11 Iowa, 432; O'Dea v. Washington Co., 3 Neb., 118.

¶5We are of opinion, therefore, that there is no error shown in the record, and the judgment of the court below must be affirmed.

¶6Judgment affirmed.

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