Clawson v. Wolfe

• Decision Date: 30 June 1877
• Citation: 77 N.C. 100
• Court: North Carolina Supreme Court
• Parties: H. T. CLAWSON v. W. O. WOLFE.

77 N.C. 100

H. T. CLAWSON

v.W. O. WOLFE.

Supreme Court of North Carolina.

June Term, 1877.

APPEAL from a Justice's Court tried at January Special Term, 1877, of WAKE Superior Court, before Schenck, J.

The title of the action in the Justice's Court was, “H. T. Clawson v. W. O. Wolfe and J. W. Watson,” and on the face of the summons was, “you are hereby commanded to summon J. O. Wolfe, &c.” When the case was called for trial (the first time after it was docketed) the defendant moved upon the face of the papers to set aside the judgment rendered by the Justice of the Peace against him and to dismiss the action, for the reason that it appeared affirmatively that no summons issued to or was served on W. O. Wolfe, the defendant, and that the return of the Constable was defective.

The plaintiff resisted the motion and offered to prove by the Constable that it was served on this defendant, and asked that the return be amended; and further, that the defendant had waived all irregularity in the proceeding by giving the Justice notice of appeal, after judgment upon the alleged defective summons had been rendered and execution issued thereon. His Honor being of opinion with the defendant, gave judgment accordingly and the plaintiff appealed.

Messrs. E. G. Haywood and Geo. H. Snow, for plaintiff .

Messrs. Busbee & Busbee, for defendant .

BYNUM, J.

There is error. It is provided in the Rev. Code, ch. 3, §§ 5-6, that where a judgment shall have been rendered in any case upon default, nil dicit, &c., it shall not be reversed, impaired or in any manner affected, for any defects in the process or pleadings, to wit; for any mistake in the name of any party or person, &c., where the correct name shall have been once rightly alleged in any part of the pleadings or proceedings. And that such omissions, defects and variances, not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the Court where the judgment shall be given, or by the Court in which the judgment shall be removed by appeal. This statute covers this case. The name of the defendant was correctly set forth in the title of the summons and in the declaration which was upon a note signed by the defendant and which he does not deny. The only defect is contained in the body of the summons where he is named J. O. Wolfe, when it should have been W. O. Wolfe. We think it sufficiently appears,...