Henderson v. Graham

• Decision Date: 31 January 1881
• Citation: 84 N.C. 496
• Court: North Carolina Supreme Court
• Parties: T. E. HENDERSON, Ex'r. v. ROBERT D. GRAHAM and another.

84 N.C. 496

T. E. HENDERSON, Ex'r.

v.ROBERT D. GRAHAM and another.

Supreme Court of North Carolina.

January Term, 1881.

MOTION heard at Fall Term, 1880, of MECKLENBURG Superior Court, before Seymour, J.

The plaintiff appealed from the judgment below.

Messrs. Jones & Johnston, for plaintiff .

Mr. Walter Clark, for defendants .

SMITH, C. J.

The plaintiff's testator sued out of the office of the clerk of the superior court of Mecklenburg a summons against the defendants directed to the sheriff of the same county, authenticated with the seal of the court but without the written signature of the clerk in the blank space at the end of the instrument intended for that purpose, and concluding with these printed words: “Witness, J. R. Erwin, clerk of our said court at office in Charlotte, this the 4th day of January, 1879.

...... .........

Clerk of the Superior Court of Mecklenburg county.”

The summons was served and returned to March term following, and the complaint verified, then put in. Upon the death of David Henderson who brought the action, the present plaintiff, his executor, became a party in his stead, and the cause transferred from the civil issue to the trial docket there remained until the fall term, 1880, when the defendant's attorney entering a special appearance moved the court to dismiss the action. At the same time the plaintiff's attorney asked leave to amend by allowing the clerk then present to affix his signature to the summons nunc pro tunc. The court refused to allow the amendment for the want of power in the court to permit it, and dismissed the action, and from this ruling the plaintiff appeals.

It has been repeatedly held, that while no appeal lies from the exercise of an admitted discretion, reposed by law in the superior court, in permitting or refusing to permit an amendment of the record to be made, yet when the refusal proceeds from a supposed want of authority, and the discretion has not been exercised, the error will be reviewed and corrected in this court. Winslow v. Anderson, 3 Dev. & Bat., 9; Freeman v. Morris, Busb. 287; McKinnon v. Faulk, 68 N. C., 279.

The only question then to be considered is this: Has the court the power to allow the amendment and the defect in the process to be remedied in the manner proposed?

The right to amend the proceedings in a pending and undetermined suit, ample before, is still more liberal under the present practice. Section 132 of the Code declares that “the court (the clerk) may before, and the judge may after, judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of a party or by correcting a mistake in the name of a party or by correcting a mistake in any other respect.” If the summons is imperfect by reason of the absence of the written signature of the clerk, and the printed name is insufficient, its official character is shown by the attached seal (though a seal is dispensed with by a recent act) and it conforms in every other particular to the requirements of the statute and gives notice (its special office) of the plaintiff's action. It has served to bring the defendants before the court in their appearance by counsel to make the motion, and no suggestion is made that the amendment will prejudice the rights of others or deprive the defendants of any defence to which the institution of a new suit would be exposed, or operate otherwise than to expedite the trial of the cause. Amendments of process are not admissible when the effect will be to prejudice acquired interests or take away any defence which could be made to an action begun at the time of the amendments. Phillips v. Holland, 78 N. C., 31. The power has been exercised in numerous cases in this state and precedents established for the present application. Thus it is held that a seal may be affixed to a writ issued to another county, after its return, and the process void without seal, thus rendered effectual. Clark v. Hellen, 1 Ired., 421. And this may be done to a fieri facias under which the defendant's land has been sold, for the purpose of perfecting the purchaser's title. Purcell v. McFarland, Ib., 34; Seawell v. Bank, 3 Dev., 279.

The extent to which the power of amendment has been carried will appear in the numerous cases which have come before this court and to which it is needless to refer in detail. Some of them are cited in Cheatham v. Crews, 81 N. C., 343. While there is no direct authority to sustain the plaintiff's motion found among the decisions in this state, our attention has been called by the plaintiff's counsel to the case of Austin v. Ins. Co., 108 Mass., 238, the essential features of which are so similar to the present, that we are content to quote from the opinion of the court without comment of our own: “It is required,” says AMES, J., “both by the constitution and statutes of this commonwealth that every original writ should be under the seal of the court from which it issues, should bear test of the first justice of the court to which it is returnable and should be signed by the clerk of the court. The writ was issued without the signature of the clerk...