Where a case is brought up to this Court, and the writ of error
appears to have been sued out for delay, the judgment will be
affirmed with costs and ten percent damages.
The case is stated in the opinion of the Court.
Page 64 U. S. 456
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This was an action of debt upon a judgment recovered by the
present defendant against the plaintiffs in error in the District
Court of the United States for the Second Judicial District of the
Territory of Minnesota. As originally framed, the declaration did
not contain any caption specifying the term of the court when it
was filed or the return day of the process on which it was founded.
In point of fact, it was filed on the thirtieth day of December,
1857, and the process was regularly returnable to the succeeding
January term of the district court, to which this writ of error
issued. Service of the summons upon the defendants was duly made on
the following day, and the record shows that they subsequently
appeared and demurred to the declaration, showing for cause the
formal defects before mentioned. On the eighteenth day of January,
1858, the plaintiff, by leave of the court, amended his
declaration, obviating the defects shown by the demurrer.
No exceptions were taken to the order of the court granting
leave to amend, and, for aught that appears to the contrary, the
amendment was made without objection.
After the amendment was allowed, the court overruled the
demurrer and, the defendants refusing or neglecting to plead to the
merits of the case, they were defaulted. Whereupon the plaintiff
moved for judgment, and filed a duly certified copy of the former
judgment on which the suit was founded. Reference was then made of
the cause to the clerk to compute the interest, and on his report's
being made in writing, judgment
Page 64 U. S. 457
was given in favor of the plaintiff for the amount of the former
judgment, together with interest on the same.
On this state of the record, the defendants sued out a writ of
error and removed the cause into this Court, but have failed to
appear and prosecute their writ of error. They did not except to
the ruling of the district court, and have not assigned error in
this Court, and it is obvious from an inspection of the transcript
that there is no error in the proceeding. Motions to amend mere
formal defects in the pleadings are always addressed to the
discretion of the court, and are usually granted as a matter of
course, and their allowance is never the subject of error. That
point has been so frequently decided that we do not think it
necessary to cite authorities in its support.
Under these circumstances, the counsel for the defendant in
error moves that the judgment be affirmed with ten percent damages.
By the twenty-third rule of this Court, it is provided that in all
cases where a writ of error shall delay the proceedings on the
judgment of the inferior court and shall appear to have been sued
out for delay, damages shall be awarded at the rate of ten
percentum per annum on the amount of the judgment, and the said
damages shall be calculated from the date of the judgment in the
court below until the money is paid.
That rule is applicable to this case, and the judgment is
affirmed, with costs and ten percent damages.