Foster v. Woodfin

• Decision Date: 31 January 1871
• Citation: 65 N.C. 29
• Court: North Carolina Supreme Court
• Parties: THOMAS H. FOSTER v. NICHOLAS W. WOODFIN and others.

65 N.C. 29

THOMAS H. FOSTER

v.NICHOLAS W. WOODFIN and others.

Supreme Court of North Carolina.

January Term, 1871.

Whenever, by any accident, there has been an omission by the proper officer to record any proceeding of a Court of record, the Court has the power, and it is its duty on the application of any person interested, to have such proceeding recorded as of its proper date; and such amendment should be made, even though the rights of third persons may be affected thereby.

An amendment supplying an omission in the record of a Court differs materially from one made for the purpose of putting into a process, pleading or return, something which was not in it originally; as an amendment for that purpose will not be allowed to the injury of third persons.

Upon a motion to amend a record of a Court, it is not regular or convenient, collaterally to consider what the effect of the amendment will be, or whether the Court had the right to do what it is alleged that it did. These questions must be decided in some proceeding directly for that purpose.

A motion to amend the records of the County Courts which existed prior to the adoption of the present Constitution and the Code of Civil Procedure, in any matter relating to the appointment of an administrator, or qualification of an executor must now be made to the Judge of Probate, and not to the Superior Court of the County.

The case of Phillipse v. Higdon, Bus. Rep. 380, cited and approved.

This was a motion to amend the record of the County Court of BUNCOMBE, at its January Term, 1860, made before Henry, J., at the last Spring Term of the Superior Court of that County. The facts are sufficiently stated in the opinion of this Court. His Honor allowed the amendment, and the defendants appealed.

Battle & Sons, for the defendants .

Phillips & Merrimon, for the plaintiff .

RODMAN, J.

This was a motion to amend the record of the County Court of Buncombe, of January Term, 1860. The plaintiff says that Thomas Foster died in that county in December, 1858, leaving a will, in which he appointed one Alexander, and the plaintiff, his executors. The will was proved at January Term, 1859, and Alexander qualified as executor. At the death of the testator, the plaintiff was, and continually since, has been a resident of Tennessee. So far there appears to be no dispute about the facts. The plaintiff further says that at January Term, 1860, he entered into a bond as was supposed to be required by the Revised Code, ch. 46, sec. 12, which was approved and accepted by the Court, and that he then, with the sanction of the Court, qualified as executor, but the clerk of the Court omitted to record those proceedings. The amendment he desires is to put them on the record now as of the Term when they were had. The motion was made before the Judge of the Superior Court for that county, and is brought to this Court by an appeal from his decision.

Whenever, by any accident, there has been an omission by the proper officer to record any proceeding of a Court of record, the Court has the power, and it is its duty on the application of any person interested, to have such proceeding recorded as of its proper date. Philipse v. Higdon, Bus. 380. Such an amendment differs materially from one for the purpose of putting into a process, pleading, or return, something which was not in it originally. An...