Sudderth v. McCombs
| Decision Date | 30 June 1872 |
| Citation | 67 N.C. 353 |
| Court | North Carolina Supreme Court |
| Parties | A. H. SUDDERTH, Guardian v. R. D. MCCOMBS, and D. S. SUDDERTH, Adm'rs. |
In cases of appeal from the Probate Court to the Superior Court, the Judge has the same right to allow amendments as if the case had been constituted in his Court.
Amendments, which promote justice and a trial on the merits, are in general liberally allowed; but in all cases the application should be made in due time, or sufficient reason be shown for the delay.
It is the right and duty of an appellant, subject to the provisions of the Code, to direct what part of the record shall be sent up; only so much should be sent up as will show that there was a case duly constituted in Court, and the verdict, judgment, and such portions of the proceedings, evidence and instructions of the Judge, as will enable the Court to pass on the exceptions.
Motion to amend pleadings, heard before Cannon, J., at Spring Term, 1872, of CHEROKEE Superior Court.
This was a special proceeding, commenced in the Probate Court of Cherokee, by the plaintiff as guardian against the defendants, as administrators of A. Sudderth, former guardian of A. McD., and Ann Elizabeth Harshaw.
The Judge of Probate stated the account, and defendants filed exceptions, which were overruled, and judgment was rendered in favor of the plaintiff, and defendants appealed.
The cause coming on to be heard before his Honor, defendants asked leave to add to their answer, by way of plea: “That they have administered the estate of their intestate, and have not assets applicable to this demand.” The Judge was of opinion that, “he had not authority to amend the pleadings on this appeal, but for the purposes of Justices the case is remanded to the Probate Judge to make such amendments as may be necessary to obtain justice.” The plaintiff excepted to this order, remanding the cause, and prayed an appeal to the Supreme Court.
J. C. L. Gudger, for the plaintiff .
No counsel for the defendants.
No reason has been suggested, or occurs to us, why the Judge should have doubted his power to pass on the amendment moved for. He had the same right to allow amendments, as he would have had if the case had been commenced in his Court. We think he ought to have decided on the motion of the defendants, and to have allowed or refused it. So far as the circumstances appear to us, it was in his discretion to allow or refuse it, according as in his opinion the interests of justice required. Amendments which promote...
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Dobson v. Chambers
...in bank.Messrs. Busbee & Busbee, for plaintiff .Mr. J. H. Merrimon in his argument for the defendant , cited and remarked upon McCombs v. Sudderth, 67 N. C. 353; Wynne v. Ins. Co., 71 N. C. 121; Com'rs v. Duncan, 1 Jones 234; Reed v. Moore, 3 Ire. 314; Wittkosky v. Wasson, 71 N. C. 451; Sta......
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Metcalf v. McGuinn, 8429SC670
...(1964), and therefore to allow amendment of the pleadings as if the suit had been originally brought in Superior Court, see Sudderth v. McCombs, 67 N.C. 353 (1872). Petitioner's voluntary dismissal was properly allowed pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. Noth......
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Bryan v. Moring
...This might easily be obviated by a careful and intelligent preparation of the transcript of the necessary record for this court. Sudderth v. McCombs, 67 N.C. 353. We are of that the appellees fail to show such cause as entitles them to have their motion allowed. Motion denied. ...