Page:Federal Reporter, 1st Series, Volume 5.djvu/46

 3i FEDERiL- BEPOETEH. �commenced is not considered properly oi lawfuUy commenced against him. The object, however, being to give him this notice, if he obtains the notice at the verytime of the Bervice of the process, as by service ûpon kim at the same time of a declaration referriiig to the statute, this will be a siibstantial (Jompliance with the statute, though there is not a formai or teohnical compliance by an indorsement on the process itself. {Bàme cases.) �TJnder these 'decisions it appears that the defect in the pro- cess was one Which the court could not allow to be amended, eo as to obtain jurisdiction of the person of the defendant, unless he had waived the'objection. It is, however, claimed by the plàintiff's counsel that under the new code of civil procedure the defect is amendable. Sections 721 to 724 are referred to as authorizing such an amendaient. Sections 721 and 722 refer only to amendments af ter judgment, andclearly cannot authorize any amendment before judgment, nor can any amendment properly be allowed after entry of a judg- ment against a party whieh was absolutely void for want of jurisdiction over the persOn ôf the defendant, so as to make the judgment valid against him. Therefore these two sec- tions may be disregarded as not affecting this question. Sec- tion 723 relates tô amendments at any stage of the cause. It authorizes the court, "in furtherance of justice," and "on such terms as it deems just," to 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 daim or defence, by con- forming the pleading or other proceeding to the facts proved." "And in every stage of the action the court must disregard an error or defect, in the pleadings br other proceedings, whioh does not affect the substantial rights of the adverse party." These provisions are, however, substantially iden- tical with those of the former Code, §§ 173, 176. Nor do they permit an amendment -vriiich would give effect and valid- ity to an original process, ineffectuai -when served to give ����