Spellmyerv. Gaff

Citations

• 112 Ill. 29

Syllabus

<p>1. Amendment of sheriff’s return—lapse of time. A sheriff’s return of service of a chancery summons was allowed to be amended after the lapse of sixteen years, upon satisfactory evidence, so as to show the fact of a legal service as to minors, there having been no intervening adverse rights acquired to be injuriously affected thereby, and it was held proper.</p> <p>2. If, however, the evidence on a motion for leave to a sheriff to amend his return to a summons as to service sixteen years after it was made, leaves it doubtful whether it fails to show the facts truly, the amendment may be refused. So, if third persons have in good faith acted and acquired rights upon the return as made, the amendment should not be made to their prejudice; but when 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, mere lapse of time is no bar to the amendment.</p> <p>3. Same—former decision. There is nothing in the case of O’Conner v. Wilson, 57 Ill. 226, to be understood as inconsistent with this ruling. It was not held in that case that such an amendment should not be allowed after the expiration of twelve years,—on the contrary, the court there expressly said a period would not be fixed within which such an application should be made.</p> <p>4. Same—admissibility of parol evidence. Where the officer is willing and desirous of correcting his return to process, so as to show a legal service, parol evidence is admissible for the purpose of showing the propriety of amending his return.</p>