Penniman v. Daniel

• Decision Date: 31 October 1885
• Citation: 93 N.C. 332
• Court: North Carolina Supreme Court
• Parties: N. G. PENNIMAN v. JOHN H. DANIEL.

93 N.C. 332

N. G. PENNIMAN

v.JOHN H. DANIEL.

Supreme Court of North Carolina.

October Term, 1885.

MOTION to dismiss an action, heard by Shipp, Judge, at Fall Term, 1885, of the Superior Court of CATAWBA County.

This action was commenced on the 14th day of March, 1883, upon a warrant of attachment sued out at that time from the Superior Court of Catawba county, and a summons returnable to Fall Term, 1883, was issued on the same day, against the estate of the defendant. On the same day the sheriff executed the warrant by levying on a quantity of tobaccco and other property.

On the 23rd day of the same month, the plaintiff obtained an order of publication of the notice to the defendant of the sum demanded in the action, and of the issuing and levying of the attachment; and requiring him to appear at the next term of the Court and answer the plaintiff's complaint, or judgment would be taken in the case, by default, and the property condemned to satisfy plaintiff's debt and costs of suit. Publication was made for six successive weeks, in the newspaper designated for that purpose, and in conformity with its terms.

On the 22nd of June, 1883, counsel for defendant appeared and moved the Court for a discharge of the attachment and vacating the order for its issue.

In response to the motion of defendant's counsel, the Court (Clerk) declared that upon the face of the pleadings there were irregularities, and ordered the attachment to be vacated.

From this ruling of the Clerk the plaintiff took an appeal to the Superior Court. The sheriff endorsed on the summons, “due search made and the defendant not to be found in my county.”

His Honor, Graves, Judge, sustained the ruling of the Clerk, from which ruling the plaintiff took an appeal to the Supreme Court.

The Supreme Court decided that the affidavit was sufficient to obtain the warrant of attachment, and reversed the decision of his Honor, Graves, Judge. See 90th N. C., 150. At Fall Term, 1884, of the Superior Court of Catawba, the counsel for the defendant moved to dismiss the action, because, as he alleged, the cause had been discontinued.

His Honor, Gilmer, Judge, refused to dismiss the action, for the reason that while a case is pending in the Supreme Court, no action can be taken in the Court below, and directed an order of publication to be made, for the defendant to appear at the next term of the ensuing Court. From this order the defendant took an appeal to the Supreme Court. This Court affirmed the ruling of his Honor. See 91st N. C., 431. At Spring Term, 1885, upon motion founded upon affidavit of plaintiff's counsel, an order of publication was made. No publication, however, was made, for the following reasons: A check was received from plaintiff to pay for this and past publications for the appearance of the defendant. Plaintiff's counsel went with the editor of the paper in which the notice was to be published, and in the presence of the Clerk, paid the amount for publication, and a receipt was taken and filed by the attorney among the papers in the cause. The attention of the Clerk was not especially called to the fact, and no money was paid to him for a future publication, and no fees tendered to make publication. That the senior counsel supposed publication was made and knew nothing to the contrary, until a short while before the term, not in time to make publication to that term.

Upon the foregoing facts, his Honor, Shipp, Judge, ordered the Clerk to make the publication asked for by the plaintiff, returnable to the next term of the Court.

The defendant's counsel moved again to dismiss the action, suggesting a discontinuance. This was refused, and the defendant appealed.

Mr. M. L. McCorkle, for the plaintiff .

Messrs. Coke & Williamson, for the defendant .

ASHE, J., (after stating the facts).

It is provided by §273 of The Code that “the judge or court may, before and 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 any party, or mistake in any other respect, or by inserting other allegations material to the case, or where the amendment does not change substantially the claim or defence, by conforming the pleadings or proceedings to the facts proved.” This section gives the court the most ample and liberal powers of amendment. The court has the power to allow the amendment of an affidavit upon which a warrant of attachment has issued, although the former affidavit was wholly insufficient. Brown v. Hawkins, 65 N. C., 645.

In Austin v. Clark, 70 N. C., 485, BYNUM, Judge, speaking for the Court said: “The Code of Civil Procedure invests the Court with ample powers in all questions of practice and procedure, both as to amendments and continuances, to be exercised at the discretion of the Judge presiding, who is presumed best to know what orders and what indulgence will promote the...