Hester v. Mullen

• Decision Date: 15 December 1890
• Citation: 12 S.E. 447,107 N.C. 724
• Parties: HESTER v. MULLEN.
• Court: North Carolina Supreme Court

12 S.E. 447

107 N.C. 724

HESTER v. MULLEN.

Supreme Court of North Carolina

December 15, 1890

This was civil action to recover damages for alleged slander tried before BROWN, J., at the fall term, 1890, of the superior court of Lincoln county. The statement of case on appeal is as follows: "Upon the trial it was admitted by counsel that, in the original complaint, the plaintiff had complained and alleged a cause of action for words uttered by the defendant in April, 1888, to which the defendant answered, and duly pleaded the statute of limitations. The summons is dated and was issued January 20, 1889. At spring term, 1890, the plaintiff applied to the court for general leave to amend the complaint, the defendant objecting. Leave to amend was granted. On April 19, 1890, the plaintiff filed an amended complaint, setting up a cause of action for other words uttered by the defendant on another occasion, to-wit on September 14, 1888. The defendant filed answer pleading statute of limitations. The court held that upon the amended complaint, setting forth a new cause of action, the plea of the statute should be sustained, and intimated that the jury would be instructed, upon the facts admitted and above set forth, to find the issue as to the statute of limitations in favor of the defendant; whereupon the plaintiff submitted to a nonsuit and appealed."

W. A Hoke, for appellee.

DAVIS J., (after stating the facts as above.)

By section 157 of the Code, "an action for slander" must be brought within six months. In the case before us the summons was issued the 21st of January, 1889. The first complaint alleged a cause of action for words uttered in April, 1888, more than six months before the summons was issued, and was barred. At spring term, 1890, leave was granted to the plaintiff to amend his complaint, the defendant objecting, and on the 19th of April, 1890, he filed an amended complaint setting up a cause of action for other words uttered by the defendant on September 14, 1888 "within six months" of the issuing the summons, but more than 18 months before the filing of the amended complaint. This cannot be done without the consent of parties; for, while the power of the courts to allow amendments in furtherance of justice is a very broad one, it has its limitations, and after the action is commenced and the complaint is filed, as was said by the present chief justice in State v. Turner, 96 N.C. 421, 2...