Page:Federal Reporter, 1st Series, Volume 8.djvu/677

WOOLRIDGB V. m'kENNA. 663 �ter in law shall appear to it, without regarding any such defect or want of form, * * * and may at any time permit either of the parties to amend any defect in the process or pleadings,. upon such conditions as it shall, in its discretion and by it rules, prescribe." Eev. St. § 954. �This section, both in letter and spirit, clearly confers the power and makes it the dnty of the courts to cure such defects as this un- less the removal statute is so imperative as to forbid it. Mr.' Chitty says that some decisions have, on the subject of amendment, made a distinction between rules of court and statutory rules of practice, but he shows that they do not go upon any want of power, but on the de- termination of the judges to deny the amendment ira general so that obedience to the statute may be enforced. 3 Chit. Pr. 54. Certainly, if this important proceeding is to be eut off from all amendments because the mode of proceeding is regulated by statute, it will be very much restricted. At common law, or undei: the English statute of jeofails, a writ of error was not amendable. 1 Comyn's Dig. tit. "Amendment, 2 C, 4," p. 614. And prior to the act of June 1, 1872, the power to amend it was much restricted with us, but that act enlarged the power of amendment, and conferred on the circuit and district courts further power to amend all process returnable before them. 17 St. 197. And this power is still further enlarged by another sec- tion of the Revised Statutes, which says: �"Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process, return- able to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom.such proeess issues." Eev. St. § 948. �And it was held to cure a writ of error from the district to the circuit court returnable to the first Monday of December instead of the first Monday of November, as it shoiild have been, and this, even though the transcript was not filed before the commencement of the term to which it was properly returnable, the court saying the defect was one of form. Semmes v. V. S. 91 U. S. 21, 24. �Hence, if the filing of the transcript in this case, by analogy to a ■writ of error, can be treated as process by which we obtain jurisdie- tion of removable causes — and this is the most favorable view for the motion to remand — it is cloarly amendable under this section of the Revised Statutes by ignoring tho defect, or allowing it to be filed nune pro tune, as was doue where a case was wrongly entitled'. Fourth N. B. V. Neyhardt, 13 Blatchf. 393.' But that it is not process in that sense I think is clear. It is the filing of the petition and bond in the state court that'uperates totransfor the case; Taylor v. ��� �