Opinion
(June Term, 1841.)
The court has a discretionary power to permit an original writ to be amended by adding to it the seal of the court, where that has been omitted before the writ issued.
REPLEVIN, returnable to CRAVEN, Fall Term, 1840. At Spring Term, 1841, the motion, from the judgment on which the appeal was taken by permission of the court, was made and allowed by Bailey, J. The following is the case transmitted to this Court:
John H. Bryan for plaintiff.
James W. Bryan for defendant.
This was a motion made by the plaintiff to affix the seal of the court to the writ of replevin which had issued at the instance of the plaintiff, in his name, as administrator of Anthony Davis, deceased, against the defendant in this case, to the county of Carteret, where the defendant resided. The plaintiff exhibited in evidence the writ of replevin and the bond taken by the sheriff of Carteret in executing said writ. It appeared in evidence that the writ was issued by the clerk of Craven Superior Court, without affixing the seal of the court to the same, to the county of Carteret, against the defendant, where the defendant resided, and was returned to the October Term, 1840, of Craven; that the defendant declined to appear by attorney or otherwise, or to file any pleas in the suit, but that he was present at this term of said court (April Term, 1841), when this motion was made, and resisted the same. And it further appeared in evidence that the defendant was notified by the plaintiffs at the return term of said writ of his intention to move this amendment. His Honor, after hearing the argument of (422) counsel on each side, upon these facts granted the motion, and ordered the clerk to affix the seal of Craven Superior Court of Law to the writ of replevin. And from this judgment or order of the court the defendant prayed his Honor for permission to appeal to the Supreme Court, which was duly granted.
It has been frequently decided in this Court that where the clerk has omitted to affix the seal of his court to writs of executions issued out of the county, the same may be amended by his being directed to affix the seal nunc pro tunc. The authorities are all collected (423) in Purcell v. McFarland, ante, 34. But it is said, this being an original writ, the same indulgence ought not to be allowed, and that in fact it is void. The answer is, and so is an execution void until it is sealed. It is further objected that there is nothing to amend by. The answer is, that the writ is not defective; it only lacked authentication. The clerk knew whether he issued it; and, if true, the court possessed the means of giving it authentication, as to the rest of the world, by stamping it with the seal of the court. The Revised Statutes (ch. 58, sec. 1) declare that the court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment. This act is very broad, and we think covers this case.
PER CURIAM. Affirmed. Cited: Smith v. Spencer, 25 N.C. 262; Henderson v. Graham, 84 N.C. 498; Luttrell v. Martin, 112 N.C. 604; Redmond v. Mullenax, 113 N.C. 510; McArter v. Rhea, 122 N.C. 617; Vick v. Flournoy, 147 N.C. 216; Calmes v. Lambert, 153 N.C. 252.
(424)