Robinson v. Hodges

• Court: North Carolina Supreme Court
• Writing for the Court: Clark
• Citation: Robinson v. Hodges, 11 S.E. 263, 105 N.C. 49 (N.C. 1890)
• Decision Date: 07 April 1890
• Parties: Robinson et al. v. Hodges.

11 S.E. 263

105 N.C. 49

Robinson et al.

v.Hodges.

Supreme Court of North Carolina.

April 7, 1890.

Probate Practice—Amendment—Judgment— Exceptions.

1. Where a complaint, in an action begun before the clerk as probate court, states matters properly triable in that court, an amendment cannot be allowed in the superior court, ingrafting matters of which the latter court alone has jurisdiction.

2. When, without amendment in such case, matters are investigated without objection of which the superior court alone had jurisdiction, and judgment is rendered thereon, the implied consent does not confer jurisdiction, and advantage can be taken of the defect in this court.

3. When there is no exception taken except to the judgment, no case on appeal is necessary, and it is sufficient to file the exceptions thereto in 10 days after judgment, as provided by rule 27.

(Syllabus by the Court)

Appeal from superior court, Cumberland county; John A. Gilmer, Judge.

Battle & Mordecai, for plaintiffs.

N. W. Ray, for defendant.

Clark, J. This was an action begun by certain wards of the defendant, Hodges, against him for an account and settlement as guardian. It was begun before the court of probate in 1878, and transferred to the superior court for trial. The complaint alleges that the appellant W. J. Smith, who afterwards came in and was made party plaintiff, and the other appellant, Mary L. Smith, who, not joining in the action, was made a defendant, were two of the wards; that as to the first named, he had been fully settled with, but as to the other appellant, that she has never been settled with. The answer alleged that both of the appellants had been duly settled with according to law, and had received their full shares of the estate. There was no allegation of any overpayment to appellants by mistake or inadvertence, or otherwise, and no prayer for judgment against them. On a reference the account was stated as to them without objection, as well as to the other wards, and, it being reported by the referee that each of appellants had been overpaid by defendant, Hodges, the court rendered judgment against them, and in favor of defendant, Hodges, for repayment to him of such overpayment. It is true that there must be allegata as well as probata, but that applies when objection is made to the proof offered. Then the court, if the objection is well taken, must either rule out the evidence, or allow amendment to the allegata. After judgment it is too late to object that there is no complaint. Leach v. Railroad Co., 65 N. C. 486; Vick v. Pope, 81 N. C. 22; Little v. McCarter, 89 N. C. 233. The court has power to allow amendment after verdict, so as to supply the omissionof an averment in the pleadings. Code, §§ 273, 274; Pearce v. Mason, 78 N. C. 37; Penny v. Smith, Phil. (N. C.) 35; Dobson v. Chambers, 78 N. C. 334. The appellee did not ask the court below for the amendment either before or after judgment, but asks this court to allow it to be made now in furtherance of justice. This court has the power to make amendments, or to remand the case that they may be made in the court below, (Code, § 965;) but only to the same extent, and in such cases, as the superior court could allow amendment. It is very clear that the court below could not have allowed the amendment asked here, which is to support the judgment by allowing the defendant and appellee, Hodges, to amend his answer by setting up the equitable grounds of mistake in making the overpayments to the appellants, or counter-claim for money had and received. Such allegations, if made, are only cognizable in the superior court, (Murphy v. Harrison, 65 N. C. 246;) and as this action was begun in the probate ...