Carleton v. Byers
| Decision Date | 30 June 1874 |
| Citation | 71 N.C. 331 |
| Parties | C. A. CARLETON, adm'r. de bonis non and others v. WASHINGTON BYERS and others. |
| Court | North Carolina Supreme Court |
The Court below has a discretionary power to allow the plaintiff to amend his complaint and the defendant his answer; and from the exercise of this discretionary power, no appeal lies to this Court.
The refusal of the presiding Judge on a trial in the Court below, to dismiss the plaintiff's action, while he appeared and was regularly prosecuting it, was not a judgment from which an appeal will lie.
( Phillipse v. Higdon, Busb. 380; Springs v. Wilson, 2 Dev. Eq. 385; Hatchel v. Odom, 2 Dev. & Bat. 302; Smith v. Smith, 8 Ired. 89; Dickey v. Johnson, 13 Ired. 430, cited and approved.)
PETITION to make real estate assets, heard before Mitchell, J., at Spring Term, 1874, of IREDELL Superior Court.
When the case was called in the Court below, the plaintiff moved to be allowed to amend his complaint, the amendment consisting of the insertion of an allegation of the bankruptcy and insolvency of the sureties to the bond of the former executor, and of the former executor himself, charged upon information and belief. Before this motion was considered, the defendant moved to dismiss the action.
His Honor refused the defendant's motion to dismiss and allowed the plaintiff to amend. Defendants appealed.
McCorkle & Bailey, for appellants .
Scott and Caldwell, and Folk & Armfield, contra .
Two questions only are presented by the case.
We know of no reason why the Judge had not the power. The case does not come within any of the exceptions recognized in Philipse v. Higdon, Busb. 380.
It is not now a question whether with the amendment the plaintiff could maintain his bill.
The Judge having the power the exercise of it in allowing the amendment was a matter of discretion not susceptible of review in this Court. It does not come within the description of determinations from which an appeal lies by C. C. P., sec. 299. It is not upon a matter of law or legal inference, neither does it affect any substantial right of the parties. If the Judge had refused to allow the amendment the question would be different. The appeal from this order must be dismissed.
I do not recollect that any proceeding called the dismissal of an action is given by the C. C. P. The term was unknown to the common law. It was introduced into our practice in common law cases by acts of Assembly found in the Revised Code, chap. 31, sec. 40 and 47, providing that if a plaintiff failed to give security for the prosecution of his suit it should be dismissed. In Equity proceedings, the term has been long known and its meaning is understood. It is allowed to a plaintiff when he does not choose to prosecute his action; and it is granted against him on motion of a defendant when the plaintiff fails or neglects to prosecutc his action according to the rules of the Court. It may also be ordered when the bill discloses no equity entitling the plaintiff to relief. But in such cases its effect is that of a non-suit at common law, and it is expressed to be without prejudice.
It puts an end to that action, but it permanently determines no right, and the plaintiff may immediately start a new action for the same cause. Springs v. Wilson, 2 Dev. Eq., 385. 2 Daniels, Ch. Pr. 962--1001. Of course I am not speaking now of dismissal upon a hearing on the pleadings and proofs, which are final, but only of those which take place upon a failure to prosecute the action, or upon a hearing of the bill alone. In such cases as in case of a non-suit, it is optional with a plaintiff, whether in deference to the opinion of the Judge adverse to his case, he will submit to a non-suit or dismissal, or will proceed with his action. So long as a plaintiff appears and prosecutes his action according to the rules of the Court, he cannot be forced to become non-suit or to dismiss action without a hearing on the pleadings and proofs. He is entitled, if he requires it, to have the facts alleged in his complaint either admitted by a demurrer, or found by a jury, as the ground of an appeal if he should desire one. It is true that upon a trial, the Judge may instruct the jury that even if they believe upon the evidence that the allegations of the complaint are proved, they should still find a verdict for the defendant, because the plaintiff's allegations do not constitute a sufficient cause of action. But a Judge will rarely do this, and only when the insufficiency of the plaintiff's case in law is quite clear. He will in general permit the jury to find the facts as they may appear upon the evidence, and leave the defendant to take...
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