Plemmons v. Southern Imp Co

• Decision Date: 05 May 1891
• Court: North Carolina Supreme Court
• Parties: Plemmons v. Southern Imp Co.

13 S.E. 188
108 N.C. 614

Plemmons
v.
Southern Imp Co.

Supreme Court of North Carolina.

May 5, 1891.

Amendment of Process—When Appeal Lies.

1. The power of amendment of pleadings, rocess, and proceedings, given to the trial court y Code N. C. § 273, will not enable it to bring in a new party defendant without its consent, except by the issue and service of an amended summons, and where the summons commands the sheriff to summon "B., president of the Southern Improvement Co., " and it was so served, the added words are merely descriptio personce, and B. alone is summoned; and an amendment striking out the words "B., president of, " will not have the effect to make the improvement company a defendant.

2. No appoal lies from the denial of a motion to dismiss an action.

Appeal from superior court, Madison county; Whitaker, Judge.

F. A. Sondley and T. F. Davidson, for appellant.

Clark, J. The summons commanded the sheriff to summon "A. H. Bronson, president of the Southern Improvement Co., " and it was so served. This is legally a summons and service only upon A. H. Bronson individually. The superadded words, "president of the Southern Improvement Co., " were a mere descriptin personal, as would be the words "Jr. " or "Sr., " or the addition of words identifying a party by the place of his residence and the like. Code, § 273, gives the court very great powers of amendment over pleadings, process, and proceedings, "by adding or striking out the name of a party, "etc. It was competent for the court below to amend the summons so as to make the Southern Improvement Company either an additional party defendant, or have substituted it as sole party defendant by at the same time striking out the name of "A. H. Bronson, president, " etc.; but it could not bring the Southern Improvement Company in as a party defendant to the action without its consent (either expressed or by entering a general appearance) except by causing the amended summons to be served upon it. The service of summons...