A clerical error in a date may be corrected by amendment. Gilbert v. South Carolina Interstate & West Indian Exposition Co. (C. C. S. C. 1901), 113 Fed. 523; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Richmond & D. R. Co. v. Benson, 86 Ga. 203, 12 S. E. 357; Gardiner v. Gardiner, 71 Me. 266; Driscoll v. Stanford, 74 Me. 103; McEvoy v. School Dist., 38 N. J. Eq. 420.

421. Case filed in wrong division.

It seems that a case filed in the wrong division of the district may be corrected by transferring the case, or by new process. In re Hamrick (D. C. Ga. 1909), 175 Fed. 279.

Time for making.

By its express terms above Rule permits amendment of any process "or proof of service" at any time. This follows the language of U. S. C. Title 28, § 767, and appears to carry out the generally established principle in that regard.

In Spellmyer v. Gaff, '112 Ill. 29, 1 N. E. 170, the court said: "Where the rights of third parties, acquired in good faith, do not intervene, and the error in the return is beyond question, and the officer is present and desirous of correcting the return, it is not perceived why any length of time should bar the amendment." Amendment was allowed after sixteen years. See Murphy v. Stewart, 2 How. (U. S.) 263 (1844), holding in effect that in the absence of statutory prohibition a court may

correct errors in its records after a long length of time, provided the delay has not been inexcusable and that no change of circumstances makes the amendment unjust.

See, also, on this point, Gilman v. Stetson, 16 Me. 124; Jeffries v. Rudloff, 73 Iowa 60, 34 N. W. 756; Shenandoah Valley R. Co. v. Ashby's Trustees, 86 Va. 232, 9 S. E. 1003; Peck v. Whitaker, 103 Pa. St. 297; Thatcher v. Miller, 13 Mass. 270; Palmer v. Thayer, 28 Conn. 237.

425. - Who may obtain.

Amendment of a return may be allowed at the instance of the serving officer (Phoenix Ins. Co. v. Wulf (C. C. Ind. 1880), 1 Fed. 775; or of a party. Frances Inv. Co. v. Thomason (C. C. A. 9th, 1926), 11 F. (2d) 229.

Before the return can be amended there must be something in the record by which to amend. Dobynes v. United States, 3 Cranch (U. S.) 241 (1806).

In Zani v. Phandor Co., 281 Mass. 139, 183 N. E. 500, the court said: "An officer may be permitted to amend his return, but deficiency in the return of service of a writ cannot commonly be supplied through evidence. Facts stated in the return of the officer may be assailed in appropriate instances under recognized procedure and evidence introduced by all parties on issues thus raised, but new facts cannot ordinarily be proved by extrinsic evidence to perfect an insufficient return; that must be done through an amendment by the officer to his return."

It has been the general rule that the court has power to permit an amendment of the return in accordance with the fact at any time, where the rights of third parties, acquired in good faith, have not intervened. Tewalt v. Irwin, 164 Ill.

592 (1897); Johnson v. Stewart, 11 Gray (Mass.) 181; Emerson v. Upton, 26 Mass. 157; McGrath v. Wallace, 116 Cal. 548, 48 Pac. 719; Berry v. Spear, 75 Me. 35; Bessey v. Vose, 73 Me. 217; Main v. Lynch, 54 Md. 664; Hass v. Sedlak, 9 Ore. 462; Ohio Life Ins. Co. v. Urbana Ins. Co., 13 Ohio 227; Harry v. Hovey, 30 Ohio St. 344; Farmington v. Somersworth, 44 N. H. 589; State v. Martin, 38 W. Va. 568, 18 S. E. 748; Grady v. Richmond & D. R. Co., 116 N. C. 952, 21 S. E. 304; Wilkins v. Fourtellot, 28 Kan. 825; Manol v. Maskin Bros., Inc., 203 Wis. 47, 233 N. W. 579.

It has been held, however, that courts have power to allow amendment even though existing rights are affected. Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858 (1876).

In its present form subdivision (h) of above Rule seemingly supersedes any such principle as this latter.

When the return is amended, the fact as to how the process was actually executed is not changed, but only the evidence of the fact is changed to speak the truth as to the facts. First Nat. Bank of Chicago v. Paris, 358 Ill. 378, 193 N. E. 207. "The court has no power to alter substantial recitals in the marshal's return." Murphy V. Campbell's Soup Co. (D. C. Mass. 1930), 44 F. (2d) 214.

427.

- Respects in which return may be amended-Date of service.

Where the date on which the process was served has been omitted or incorrectly stated, leave to amend by inserting the date or correcting the date first stated has usually been given. Speare v. Stone (C. C. A. 1st, 1912), 193 Fed. 375, aff'g 175 Fed. 584; Haven v. Snow, 31 Mass. 28; Johnson v. Day, 34 Mass. 106; Snyder v. Schram, 59 How. Pr. (N. Y.) 404; Heymes v. Champlin,

52 Mich. 25, 17 N. W. 226; Payne v. Long-Bell Lbr. Co., 9 Okla. 683, 60 Pac. 235; First Nat. Bank v. Ellis, 27 Okla. 699, 114 Pac. 620; Osborne v. Hughey, 14 Okla. 29, 76 Pac. 146; Cobb v. Newcomb, 7 Iowa 43; Linder v. Crawford, 95 Ill. App. 183; Foster v. Crawford, 57 S. C. 551, 36 S. E. 5; Williams v. Weaver, 101 N. C. 1, 7 S. E. 565; White v. Ladd, 34 Ore. 422, 56 Pac. 515.

429.

Lack of signature. Where the officer making service has failed to sign the return, the return is not for that reason rendered void, and amendment to correct has been allowed even after the officer making service is no longer in office. Adams v. Robinson, 18 Mass. 461; Thatcher v. Miller, 11 Mass. 413, 13 Mass. 270; Rudy v. Commonwealth, 35 Pa. St. 166, 78 Am. Dec. 330; Dewar v. Spencer, 2 Whart. (Penn.) 211, 30 Am. Dec. 241.

430.

- Manner of serving. Amendment to show the exact manner of serving has often been allowed where the original return did not sufficiently indicate it. Northrup v. Shephard, 23 Wis. 513; Armond V. Adams, 25 Ind. 455; Jackson v. Ohio & M. R. Co., 15 Ind. 192; Howard v. Priestley, 58 Miss. 21; Wilkins v. Tourtellot, 28 Kan. 825; Allison v. Thomas, 72 Cal. 562, 14 Pac. 309; Crocker v. Mann, 3 Mo. 472, 26 Am. Dec. 684. Thus where, in ejectment, the returns of service as to two of the defendants were defective, one for failure to show that the door of defendant's abode on which the process was posted was the "front door," and the other for failure to show that defendant's

wife, with whom the process was left, was a member of his family, such returns, though made by a private person, might be amended to show the fact, as against defendants themselves. King v. Davis (C. C. Va. 1903), 137 Fed. 198, aff'd 157 Fed. 676.

Innocent purchasers from defendants in pending ejectment suits in the federal courts in Virginia being bound by the record without the filing of a lis pendens, a return of service, defective in that it did not show that the wife of the person on whom process was served was a member of his family, was held amendable as against an innocent purchaser from the defendant so served. King v. Davis (C. C. Va. 1905), 137 Fed. 222, aff'd 157 Fed. 676.

A return deficient in failing to state where service was made and that the person served is the person named in the writ, may be amended if the marshal so requests. Murphy v. Campbell Soup Co. (D. C. Mass. 1930), 44 F. (2d) 214.

431.

-Name of defendant. Permission has been given to amend by inserting the correct name in accordance with the fact, the return as made having failed to give the name, or having stated it incorrectly. McKane v. Democratic Committee, 21 Abb. N. C. 89, 1 N. Y. Supp. 580; Marsh v. Phillips, 77 Ga. 436; Cleveland v. Pollard, 37 Ala. 556; Alford v. Hoag, 8 Kan. App. 141, 54 Pac. 1105; Wilkins v. Tourtellot, 28 Kan. 825; Louisville, H. & St. L. R. Co. v. Com., 104 Ky. 35, 46 S. W. 207; Phillips v. Evans, 64 Mo. 17; Gaff v. Spellmeyer, 15 Ill. App. 294.

Under former practice, as stated in 4 Cyc. of Federal Procedure, § 1224, no mode in which leave to amend should be sought was specified by statute, and if the process had not been served, and amendment was sought, there was no defendant to notify, and application for leave would necessarily be ex parte. No detailed procedure in this regard is prescribed by the new rules, and the same situation therefore prevails. However, where process had been served and amendment of the return was asked, it has been said to be desirable that the defendant have opportunity to be heard. King v. Davis (C. C. Va. 1903), 137 Fed. 198, aff'd 157 Fed. 676.

In Wade v. Wade, 92 Ore. 642, 176 Pac. 192, the court said: "While some courts hold that an amendment of process after judgment can only be made upon notice, we think the better reason and authority at least justify the contrary view," citing Woodward v. Brown, 119 Cal. 283, 51 Pac. 2; Kahn v. Mercantile Town