76 N.C. 136 | N.C. | 1877
It is conceded by both parties, that upon the facts found by the Judge, the plaintiffs were not entitled to the judgment demanded in their complaint, which was against Blair as administrator of Bulla. Bulla never received the money and was never indebted to the plaintiffs. We may assume for the present purpose, that upon the facts found, the plaintiffs were entitled to judgment against Blair individually. The plaintiffs without moving to amend their complaint *138 so as to make it conform to the proof moved the Court for a judgment against Blair individually which the Court refused and dismissed the action.
We think that under §§ 128, 129, 132 and 135 of C. C. P., the Court might have allowed the amendment suggested, either upon motion by the plaintiffs or ex suo motu. The allegation in the complaint that the money was received by Bulla in his life time was a mistake, as the defendant necessarily knew, and it does not appear to us, that it could have misled or prejudiced him in his defence. But we cannot say that the allegation was immaterial. In fact it was material. If true, the plaintiffs would have been entitled to judgment against the defendant, to be levied de bonistestatoris. But the allegation was supported by no evidence. We think that under the sections cited, the allowance of the amendment was discretionary with the Judge under the circumstances of this case and that his refusal to allow it can not be reviewed here.
This Court has often expressed its opinion, that amendments which further justice, speed the trial of controversies or prevent unnecessary circuity of action and unnecessary expense ought to be liberally allowed on proper terms. Such is undoubtedly the spirit of the Code, as is shown by the sections above cited. But in most cases, it must remain with the Judges of the Superior Courts alone to give effect to it.
Of course, the dismissal of the present action will be without prejudice to one against Blair personally.
PER CURIAM. Judgment affirmed. *139