State Ex Rel. Goodwin v. Works
| Decision Date | 25 October 1898 |
| Citation | 31 S.E. 373,123 N.C. 162 |
| Court | North Carolina Supreme Court |
| Parties | STATE ex rel. GOODWIN . v. CARALEIGH PHOSPHATE & FERTILIZER WORKS. |
Pleading—Amendment—Discretion ot Court— Appealable Orders — Changing Cause of Action.
1. The discretion of the court in the amendment of pleading is subject to the exception that the amendment must not set up a different cause of action, nor change the subject of the action, nor deprive defendant of defenses he would have had to a new action.
2. Where it is claimed that the effect of the allowance of an amendment to pleading is to change the cause of action, the remedy is not an immediate appeal, but to note an exception and appeal from the final judgment, if it is adverse.
3. It is no ground for exception to the amendment of a complaint that it would set up a cause of action barred by limitations, as that would be matter of defense, which defendant, if he chooses, may set up in his answer thereto.
Appeal from superior court, Wake county; Timberlake, Judge.
Action by the state, on relation of W. H. J. Goodwin, against the Caraleigh Phosphate & Fertilizer Works. From a judgment for plaintiff, defendant appeals. Appeal dismissed.
Edward C. Smith, for appellant.
Douglass & Sims, for appellee.
It was held in this case (121 N. C. 91, 28 S. E. 192) that the allowance or refusal of a motion to amend pleadings is a matter within the discretion of the presiding, judge, and no appeal lies. But this is subject to the exception that the amendment of the complaint does not assert "a cause of action wholly different from that set out in the original complaint, does not change the subject of the action, nor deprive the defendant of defenses he would have had to a new action." Parker v. Harden, 122 N. C. 111, 28 S. E. 962, quoting King v. Dudley, 113 N. C. 167, 18 S. E. 110, and cases cited in Clark's Code (2d Ed.) pp. 223, 224. Even when it is claimed that it has that effect, the remedy is not an immediate appeal, but to note an exception and appeal from the final judgment if it is adverse; so, in any aspect, this appeal would be dismissed. In Gillam v. Insurance Co., 121 N. C. 369, 28 S. E. 470, the court approved a refusal of leave to amend the complaint in that case, for the above reasons; but the granting permission to amend is not ground for exception that the complaint would set up a cause of action that is barred by the statute of limitations, as that is matter of defense to be set up in the answer to the amended...
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Home Real Estate v. Locker
...so as to deprive the defendants of the right to plead the statute of limitations in bar of recovery in such action. Goodwin v. Fertilizer Works, 123 N.C. 162, 31 S.E. 373; Reynolds v. R. Co., 136 N.C. 345, 48 S.E. 765; Sams v. Price, 121 N.C. 392, 28 S.E. 486; Fishell v. Evans, 193 N.C. 660......
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Hockfield v. Southern Ry. Co
...also the refusal of an amendment pleading the statute of limitations. Parker v. Harden, 122 N. C. 111, 28 S. E. 962; Goodwin v. Fertilizer Co., 123 N. C. 162, 31 S. E. 373. The fourth exception is abandoned. The fifth exception presents the contention that this is an interstate shipment, an......
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...Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565; Bank of Ashe v. Sturgill, 223 N.C. 825, 28 S.E.2d 511; Goodwin v. Caroleigh Phosphate & Fertilizer Works, 123 N.C. 162, 31 S.E. 373. However, since the Superior Court had no jurisdiction of the subject matter of this action at the time it was......
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Fishell Et Ux v. Evans, (No. 357.)
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