CHAPTER VIII. Miscellaneous Interlocutory Proceedings, and Regulations of Practice. TITLE I. Mistakes, Omissions, Defects, and Irregularities. TITLE II. Tender, and other Offers and Requests to the Adverse Party. TITLE V.-Motions and Orders General'y. HILE VI.-Miscellaneous Practice Regulations. TITLE I. Mistakes, omissions, defects, and irregularities. Bec. 121. Defects cured by verdict, etc., and by judgment. 722. Such defects to be supplied. 723. Amendments by the court; disregarding immaterial errors, etc. 724. Relief against omissions, etc.; amendments to conform proceedings. 725. Returns by officers, etc. 725. Papers lost or withheld; how supplied. 127. Order of court; when necessary to amend. 728. Disregarding defects in affidavits. 729 Certain bonds, etc., when sufficient. 730. Amending defects in bonds, etc. } 721. [Am'd, 1879.] Defects cured by verdict, etc., and by judgment. In a court of record, where a verdict, report or decision has beer rendered, the judgment shall not be stayed, nor shall any jerment of a court of record be impaired or affected, by as of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings or other proceedings: 1. For want of a summons, or other writ. 2 For any fault or defect in process; or for misconceiving a Process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other her; or because an officer has not subscribed a return, actually ade by him. For a variance between the summons and complaint. For a mispleading, insufficient pleading, or jeofail. For want of a warrant of attorney by either party. For the appearance, by attorney, of an infant party, if the det, report, or decision, or the judgment, is in his favor. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person; or a sum of money; or in the description of property; or in reting or stating a day, month, or year; where the correct ta, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11 For an informality in entering judgment, or making up the judgment-roll. 12. For an omission on the part of a referee to be sworn; or for any other default or negligence of the clerk, or any other court, the judge making the order, by or pursuant to which the receiver was appointed, or his successor in office, may, at any time, remove the receiver, or direct him to give a new bond, with new sureties, with the like condition. But the foregoing provisions of this section do not apply to a case where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. A receiver who, having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond, of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. See post, §§ 810-816; also §§ 729-730. In effect March 11, 1896. L. 1896, ch. 94. § 716. [Am'd, 1895.] property. Certain receivers may hold real A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court or a county court, or in a special proceeding for the voluntary dissolution of a corporation, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. L. 1805, ch. 946; L. 1845, ch. 112. § 1 (4 Edm. 552), am'd. 172 ARTICLE SECOND. Deposit, delivery or conveyance of property. Sec. 717. Court may order a deposit or delivery of property in certain cases. 718. When sheriff may take and convey, etc., property. § 717. [Am'd, 1877.] Court may order a deposit or delivery of property in certain cases. Where it is admitted, by the pleading or examination of a party, hat he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subect of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court may, in its discretion, grant an order, upon notice, that be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of the Court. Co. Proc., part of § 244, am'd. See post, §§ 743-754. 718. When sheriff may take and convey, etc., property. Where the court has directed a deposit or delivery, as prescribed in the last section; or where a judgment directs a party to make a deposit or delivery, or to convey real property; if the lection is disobeyed, the court, besides punishing the disobeence as a contempt, may, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in conformity with the direction of the court. 14. § 244, the last sentence but one am'd. 173 officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced. 2 R. S. 424, 425, § 7 (2 Edm. 442, 443), am'd. § 722. Such defects to be supplied. Each of the omissions, imperfections, defects, and variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. Id., § 8. 723. [Am'd, 1877, 1900.] Amendments by the court; disregarding immaterial errors, etc. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial. Co. Proc., $173, and the first clause of § 176; the second clause of the latter section being included in § 721, ante. L. 1900, ch 591. In effect September 1, 1900. § 724. Relief against omissions, etc.; amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision. Id., 174, am'd. See 88 781, 783, 784, 1282. § 725. Returns by officers, etc. A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discre tion, direct the return to be amended, in matter of form, either before or after judgment. 2 R. S. 424 (2 Edm. 442). 726. Papers lost or withheld; how supplied. Where an original pleading or paper is lost, or withheld by any person, the court may authorize a copy to be filed and used, inread of the original. Co. Proe., § 422. {727. Order of court; when necessary to amend, A process, pleading, or record, shall not be altered, by the serk or any other officer of the court, or by any other person, without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, a specially authorized by law to amend a pleading. 2 R. S. 425 (2 Edm. 443), am'd. {728. Disregarding defects in affidavits. The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made, Co. Proc., § 403. {729. Certain bonds, etc., when sufficient. A bond or undertaking, required by statute to be given by a person, to entitle him to a right or privilege, or to take a proeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, the prejudice of the rights of the party, to whom, or for hose benefit, it is given. 2 R. S. 556 (2 Edm. 576), am'd. 1730. Amending defects in bonds, etc. Where such a bond or undertaking is defective, the court, ficer, or body, that would be authorized to receive it, or to tertain a proceeding in consequence thereof, if it was perfect, ay, on the application of the persons who executed it, amend accordingly; end it shall thereupon be valid, from the tim of its execution. |