
    Graves v. Heaton, et al.
    
    1. Amending kecokd. Judgment by default before a justice, from which an appeal ivas taken to the District Court. Defendant moved to correct the original notice and justice’s transcript, and in support of the motion filed an affidavit of the constable who served the notice, showing that when it was issued and served it was returnable at an hour different from that named in the record. Held:
    
    1. That the alleged alteration was of no importance in the trial of the cause in the District Court,
    2. That its correction was not necessary as a basis for an application by the defendant to the court for leave to file an answer.
    
      Appeal from^ Fremont District Court.
    
    Wednesday, October 10.
    
      Rector § Harvey and Jno. A. Hasson for the appellants.
    
      Linger fetter and C. 0. Cole for the appellee.
   Wrigiit, J.

Judgment by default before a justice, from which defendants on the same day appealed to the District Court. On appeal, based upon the affidavit of the constable who served the notice, defendants moved to correct the original notice and the justice’s transcript to correspond with such amendment, so as to show that such notice, when issued and served, was made returnable at 10 o’clock, A. M., and not 1 o’clock, P. M.,. of the 19th day of March, 1859. This motion was overruled and defendants appeal.

' I. Held, that as the appeal to the District Court brought !up the cause for hearing upon its merits, the alleged alteration in the notice was, for the purpose of this action, of no kind of importance; for that if corrected as claimed, the position of defendants would not be changed, nor their rights different from what they were without the change.

II. That if they claimed that by reason of this alteration, that they acted upon the notice as served, and they had been misled and prevented from appearing and pleading before the justice, and therefore had a right to plead in the District Court, their course was to make such application, and if they were entitled for such reasons to plead, they would do so without, as well as with, such correction.

Judgment affirmed.  