Brooks v. Stephens

• Decision Date: 02 April 1888
• Citation: 100 N.C. 297,6 S.E. 81
• Court: North Carolina Supreme Court
• Parties: Brooks v. Stephens et al.

6 S.E. 81

(100 N.C. 297)

Brooks

v.Stephens et al.

Supreme Court of North Carolina.

April 2, 1888.

Judgment—Amendment.

The court has every power to hear and decide applications to amend the record at places fixed upon. Therefore an appeal will not lie for the mere correcting of a judgment rendered in a cause at a previous term at a place outside the county wherein it was pending, such amendment being made on full evidence of the intention of the judge who first tried the case at a place agreed upon by the parties.

Appeal from superior court, Jones county; Walter Clark, Judge.

The plaintiff, Brooks, filed a petition for dower against Stephens et al. Judgment for defendants, and plaintiff appeals.

S. W. Isler, for appellant.

Simmons & Manly, for appellees.

Smith, C. J. There is no error assigned in this appeal, which is taken from the action of the judge in correcting a mistake made in rendering a judgment in the cause at a previous term, and at a place outside of the county wherein it had been pending. The subject-matter of the amendment was in the plaintiff's claim to dower in a fund which had been produced by the sale of what is called the "Miller land, " in which her husband had acquired the equity of redemption, subject to two incumbering mortgages, the debts secured in the latter having been assigned to him. The proceeds of the sale were insufficient to discharge the secured debts. In the first judgment the plaintiff was declared to be entitled to one-third in value of the other lands left by her husband, but that she is not entitled "to dower or provision in lieu of dower in the fund or money arising from the J. K. Miller land, as set forth in the third, fourth, and fifth articles of the complaint." The amendment consisted in substituting for the descriptive words, following the word "entitled, " "to dower in the lands set forth in the complaint as the J. K. Miller land, nor provision in lieu of dower therein." The change was entirely unnecessary, a distinction without a difference, as the land had been sold under proper proceedings to foreclose, and a claim could only attach to the money fund into which the land had been converted by the sale, if it had any validity in law. The amendment, the result of over-caution, and to prevent a possible future misconstruction of the terms of the judgment, was allowed upon full evidence of the intent of the former judge, furnished by himself and the attorney, who, by his direction, put his ruling in writing, and...