104 S.E. 890 | N.C. | 1920
This is a summary proceeding in ejectment to recover land held by defendant under a lease, which was commenced in the court of a justice of the peace and taken by appeal of the defendant to the Superior Court, where a judgment was rendered in favor of the plaintiff for the possession of the premises, rent, and costs. Defendant appealed.
1. The defendant lost the benefit of his special appearance by moving for a continuance and pleading to the merits. This changed his special appearance into a general one. We said in Scott v. Life Asso.,
2. The court was well within its statutory power when it allowed the amendment of the process and pleadings so as to show the true names of the parties, there being nothing more than a misnomer, as they originally stood. 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 by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. 1 Pell's Revisal, p. 236, sec. 507. The court, or judge thereof, shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. 1 Pell's Revisal, p. 241, sec. 509, and notes. And a liberal policy is pursued in cases appealed from the court of a justice of the peace, as will be seen by reference to the cases in 1 Pell's Revisal, cited under sec. 507. It was provided by Rev., 1467 (Rule XI), that no process or other proceeding begun before a justice of the peace, *438
whether in a civil or a criminal action, shall be quashed or set aside, for the want of form, if the essential matters are set forth therein; and the court in which any such action is pending, shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment. Laney v. Mackey,
3. The motion for nonsuit was properly overruled, as there was evidence to justify the verdict of the jury. We have no jurisdiction to pass upon the merits of the evidence or to review the findings of the jury, but only decide upon the law. The judge below may set aside the verdict if he considers it against the weight of the testimony, but we possess no such power.
4. The plaintiffs were entitled to judgment upon the stay bond against the principal and his sureties, for that is in accordance with their covenant as expressed in it.
We can find no error in the case on appeal or the record.
No error.