Opinion
June Term, 1842.
The courts below have the power, at their discretion and on such terms as they may prescribe, to add new plaintiffs to those mentioned in the writ and original decleration.
APPEAL, from an inter locutory order made by Nash, J., at Spring Term, 1842, of MONTGOMERY.
Winston for plaintiff.
Mendenhall and Strange for defendant.
Detinue, brought in the name of Olive Green against the defendant, returnable to Spring Term, 1840.
At September Term, 1840, the defendant appeared by his attorney and pleaded non detinet, and admitted on the record a demand of the plaintiff and that he was in possession of the slaves sued for. The cause was regularly continued till Spring Term, 1842, when, "on motion in open court, and after argument, the court ordered that the plaintiff Olive Green have leave to amend the writ by making Henry Harris and wife, Elizabeth, John McLeod, and wife, Judy, and James Shemwell and wife, Nancy, parties plaintiffs with the said Olive, with leave to prosecuted the suit under the writ so amended," which amendment was accordingly made. From the order allowing this amendment the defendant, by leave of the court, appealed to the Supreme Court.
An action of detinue for a slave was instituted by Olive Green in her own name only, and, after the general issue pleaded, a motion was made to amend the writ and declaration by adding three other persons as joint plaintiffs with Olive Green, which (345) was permitted by the court. From that decision the defendant was allowed an appeal to this Court. It has very often been mentioned by us that this Court could not undertake to revise an order made in the exercise of a discretion of the Superior Court. The only question, therefore, is whether the order here complained of be one of that character or one which the Superior Court had no power to make. The Revised Statutes, ch. 3, sec. 1, gives the answer in precise terms to that question. The words are, "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 rendered thereon." These terms are, if possible, still more comprehensive than those of the act of 1790, and confer plenary authority, while a cause is pending, to make any and every amendment upon such terms as shall seem just to that court. But under the act of 1790 the decisions would have authorized the order made in this case. In Grandy v. Sawyer, 9 N.C. 61, the names of some plaintiffs were struck out and others inserted. In Wilcox v. Hawkins, 10 N.C. 84, the Court said that although this Court could not allow the pleadings to be amended by inserting the names of the true members of a firm in the place of others which had been put into the writ by mistake, yet such an amendment might have been made on a reasonable application to the court below.
PER CURIAM. Affirmed.
Cited: Quiett v. Boon, 27 N.C. 11; Lane v. R. R., 50 N.C. 26.
(346)