¶1The opinion of the court was delivered by
¶2We think the action of the justice of the peace in this case, in causing the summons, which was directed against A. Jacoby, to be amended so that defendant’s name would read Abraham J acoby, should be sustained. The defendant did not himself appear on the return day, but the record shows that, before the trial began, Ephraim Cutter, an attorney of the defendant, appeared for him, and objected to the summons; and asked that it be set aside, because the first or Christian name of the defendant was not inserted therein. The justice denied the motion, and thereupon .amended the summons.
¶3It will be noted that the attorney of the defendant made no objection to the service, which appears to have been regular, and what he said was practically an admission that the. right party had been served. His objection was that the defendant’s Christian name was not inserted in the summons. Presumably the plaintiff did not know defendant’s full name when the suit was brought.
¶4We think the one hundred and thirty-eighth section of the Practice act {Gen. Stat., ¶. 2556, § 138), which has been extended to Justices’ Courts {Gen. Stat., p. 1886, § 113), justifies the amendment of the summons.
¶5We have been pointed to Elberson v. Richards, 13 Vroom 69, and Dittmar Powder Co. v. Leon, Id. 540, to show that such a defect in the summons is fatal. But they were proceedings under the Attachment act, to which the amending statute does not apply. We think the supplement to the Practice act approved April 16th, 1891 (Gen. Stat., p. 2594), would also apply to this case and justify the action of the court below.
¶6The judgment is affirmed, with costs.