Cantwell v. Herring

• Decision Date: 23 October 1900
• Citation: 37 S.E. 140,127 N.C. 81
• Court: North Carolina Supreme Court
• Parties: CANTWELL. v. HERRING.

127 N.C. 81

37 S.E. 140

CANTWELL.

v.HERRING.

Supreme Court of North Carolina.

Oct. 23, 1900.

ANSWER—VERIFICATION—AMENDMENT.

Code. § 272, provides that any pleading may be once amended without cost at any time, unless it is done for delay, or would cause a continuance of the case beyond the term for which it was locketed; section 273 declares that the court may amend any pleading before or after judgment, on proper terms, by correcting any mistake therein; and section 274 author izes the judge to permit an amendment, on just terms, of any proceeding, so as to make it conform to the requirements of the Code. Held, that it was within the discretion of the trial court to permit the defendant, over plaintiffs objection, to amend an insufficient verification to the answer.

Montgomery, J., dissenting.

Appeal from superior court, Wilson county; Bowman, Judge.

Action by W. L. Cantwell against Doane Herring. From an order permitting defendant to amend the verification to his answer, plaintiff appeals. Affirmed.

Deans & Cantwell and J. H. Pou, for appellant.

Fred. A. Woodard, for appellee.

DOUGLAS, J. This was a civil action based on a contract coming on to be heard upon the complaint and answer. The plaintiff moved for judgment upon the sworn complaint, alleging that the verification of the answer was insufficient. The court held with the plaintiff that the verification of the answer was not sufficient, whereupon the defendant asked leave to amend such verification. Such leave was granted over the objection of the plaintiff. On motion of the defendant, the court then allowed an amended answer to be filed, the plaintiff again objecting. The plaintiff assigns as error (1) the refusal of his honor to grant the motion of the plaintiff for judgment on the sworn complaint; (2) in allowing the defendant to amend his verification of the answer; (3) in allowing an amended answer to be filed. This presents the sole question whether the court below acted within the limits of its lawful discretion in permitting an amendment of the verification to the answer over the objection of the plaintiff. We think it did. Sections 272-274, Code, give ample powers of amendment, and these provisions have uniformly been beneficially construed by this court. In fact, in Gilchrist v. Kitchen, 86 N, C. 20, it is held that, independently of the Code, "the superior courts possess an inherent discretionary power to amend pleadings or allow them to be filed at any time, unless prohibited by some statute, or unless vested rights are interfered with." From the wording of the Code as well as its essential reason, we must conclude that the power of amendment extends to the verification of pleadings. We can find no decision in our Reports to the contrary. We are cited to several cases, but, so far from sustaining the contention of the plaintiff, they sustain the ruling of the court below. In Mallard v. Patterson, 108 N. C. 255, 13 S. E. 93, an unverified answer was filed to a verified complaint, and, after the lapse of five years, the defendant asked to be allowed to verify this answer, or to file a new one properly verified. This court says (on page 258, 108 N. C, page 94, 13 S. E.): "Clearly, he was not entitled to do so as of right. It was discretionary with the court to allow or disallow his application, or grant the same with limitations. The court allowed him to answer.alleging 'meritorious' defenses, but not to avail himself of the statute of limitations. This the court might do, and its exercise of discretion in such respect is not reviewable in this court." In Griffin v. Light Co., 111 N. C. 434, 16 S. E. 423, the court says: "The verification having been sufficient, it was error to refuse the plaintiff judgment because an unverified answer was filed. * * * It Is true the court might, in its discretion, have extended the time for the defendant to file its answer so as to give opportunity, if desired, to verify it, * * * and the exercise of this discretion is not reviewable. * * * But in the present case that discretion was not exercised. Why it was not asked does not appear, unless, as is probable, the defendant could not verify a denial of the plaintiff's allegations in a plain action on a note in his possession." In Curran v. Kerchner, 117 N. C. 264, 23 S. E. 177, the verified complaint set out two notes, —one for $5,000, and the other for $2,000. The defendant answered as to the first note,...