61 N.C. 35 | N.C. | 1866
In the Superior Court, at Fall Term, 1863, the defendant moved to dismiss the petition, upon the ground that the county court had no power to amend, after dismissing it and granting an appeal. Bailey, J., (36) having refused to dismiss, the defendant appealed to this Court. *49 The judge had a discretion to allow an appeal bond to be filed in the Superior Court, and with the exercise of that discretion this Court has no right to interfere.
The motion to dismiss the appeal, upon the ground that the county court had no power to amend the petition after dismissing it and granting an appeal to the Superior Court, was put on the ground that the court was functus officio in respect to the case, and had no further control over it. In this the counsel for the defendant is mistaken. The proceedings of the court are in fieri until the expiration of the term, and until then the record remains under the control of the court. It may strike out the judgment and enter a different one; it may amend the pleadings and do any other act necessary to effect the purposes of justice, and this as well after as before what purports to be a final judgment has been entered. In other words, the court has the whole term during which to consider of its action, and any entry made on a former day does not affect its power on a subsequent day. It is every day's practice in the Superior Courts to allow the writ to be amended by entering a larger sum: or in ejectment to extend the time of the demise, and these amendments are usually applied for and allowed after judgment has been entered and an appeal taken. But it is a rule that the court will not allow an amendment which takes away the ground on which the party has appealed, except upon the payment of all costs; and then the appellant can withdraw the appeal. Such amendments are also made in this Court, but we take care not to amend a party out of court; that is, take from under him the ground on which he appealed, (37) except upon the payment of all costs. If the county court had not allowed the amendment in this case, it would have been ordered in the Superior Court, or in this Court; so that there is no room for complaint, except as to costs. Plunkett v. Penninger, 2 Jones, 367.
The county court had full power to allow amendment at the time that it was made. Whether the amendment should have been made without costs, or upon payment of costs, was a matter of discretion, with which the Superior Court had no right to interfere. There is error.
PER CURIAM. Judgment affirmed.
Cited: Dobson v. Chambers,
