Opinion
(December Term, 1844.)
The court in which a suit is pending has the exclusive discretionary power of permitting amendments in the process and pleadings, and no appeal lies from the exercise of such power.
APPEAL from an interlocutory order, at Fall Term, 1844, of BURKE; Battle, J.
Avery for plaintiff.
H. W. Miller for defendant.
The writ in this case was returned to Burke, at Spring Term, 1842, and required the defendants to answer the plaintiff as administrator, etc., "of a plea of trespass on the case to plaintiff's damage $1,500." At Fall Term, 1844, the following record appears: "The defendants appeared by their attorneys, and by leave of court entered the following pleas: general issue, statute of limitations, payment and set-off, accord and satisfaction, fully administered," etc. Whereupon, on motion of the plaintiff's counsel and by leave of court, the following amendment was made, on the plaintiff paying all the costs up to this term: "On motion of the plaintiff's attorney, it is ordered by the court that the writ in this case be amended to the name of the (10) State of North Carolina to the use of James H. Quiett, administrator, etc., against (the defendants), and alter damages so as to meet sheriff's bond of 1837, viz., to render the sum of £ 5,000 to plaintiff's damage, for breach assigned, $1,500."
The defendant's counsel objected to the amendment upon the ground that if the action was changed the plea of the statute of limitations would not avail them in defense, as it would do if the action were to remain as it now was, or if the plaintiff should be put to commence a new suit.
From the order to amend the defendant prayed an appeal to the Supreme Court, which was granted.
The writ in this cause was originally filled up in case, and returned to Burke Superior Court of law, at Spring Term, 1842. The cause was continued until Fall Term, 1844, when, on motion of the plaintiff by his counsel, he was permitted to amend his writ by changing it from case to debt. The defendant complains of this amendment and appeals to this Court for the purpose of having it set aside.
It is very obvious from the phraseology of our act of amendment, that the power of a court, where a cause is pending, to make amendments, is a discretionary one. The words are "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 final judgment rendered thereon." Rev. St., ch. 3, sec. 1. It is difficult to conceive words more comprehensive or more expressive of the grant of a power to be exercised at the discretion of those to whom it is granted. Many cases have been in this Court upon the subject of amendments, and it has uniformly been decided that the court before whom the cause was pending might, in the language of the act (11) of 1790, amend anything at any time. In McClure v. Burton, 4 N.C. 84, the writ was amended by striking out some of the defendants. In Grandy v. Sawyer, 9 N.C. 61, the writ was amended by striking out some of the plaintiffs and inserting others. In Davis v. Evans, 4 N.C. 111, an amendment was made even after a special demurrer was filed. The last case on this subject in this Court was Green v. Deberry, 24 N.C. 344. It was an action of detinue, originally brought in the name of Green alone. The writ was returned to Spring Term, 1840, of Montgomery Superior Court. At the succeeding Fall Term the pleadings were made up, and at the Fall Term, 1842, the plaintiff, on his motion, was permitted to amend his writ by inserting the names of the other plaintiffs. From the order allowing this amendment the defendant was permitted to appeal to this Court, when the order below was affirmed. The Court in rendering their judgment say that the words of section 1, chapter 3, Revised Statutes, "confer plenary authority, while a cause is pending, to make any and every amendment, upon such terms as shall seem just to that court." In delivering the opinion of the Court the Chief Justice observes: "It has been very often mentioned by us that this Court would not undertake to revise an order, made in the exercise of a discretion of the Superior Court"; and in S. v. Lamon, 10 N.C. 135, the Court expressly say that no appeal lies from an act done by a Superior Court in the exercise of a legal discretion. That this is the exercise of a discretionary power is evident from the act itself and the various decisions which have been made under it and the act of 1790, which are before referred to.
Whether, in this particular case, the power has been judiciously exercised is not for us to say. His Honor below thought it a case calling for his interference. The law gave him the power to grant the amendment, and he has done so, upon the terms he thought (12) just.
PER CURIAM. Affirmed.
Cited: Bagley v. Wood, 34 N.C. 91; Freeman v. Morris, 44 N.C. 288; Phillipse v. Higdon, ib., 382; Pendleton v. Pendleton, 47 N.C. 136; Lane v. R. R., 50 N.C. 26.