11 S.E. 263 | N.C. | 1890
The answer alleged that both of the appellants had been duly settled with according to law, and had received their full shares of the estate. There was no allegation of any over-payment to appellants by mistake or inadvertence, or otherwise, and no prayer for judgment against them. On a reference, the account was stated as to them without objection, as well as to the other wards, and it being reported by the referee that each of the appellants had been over-paid by defendant Hodges, the Court rendered judgment against them and in favor of defendant Hodges, for repayment to him of such over-payment.
It is true that there must be allegata as well as probata, but that usually applies when objection is made to the proof offered. Then the Court, if the objection is well taken, must either rule out the evidence or allow amendment to the allegata. After judgment it is too late to object that there is no complaint. Leach v. Railroad,
The appellee did not ask the Court below for the amendment, either before or after judgment, but asks this Court to allow it to be made now, *68
in furtherance of justice. This Court has the power to make amendments or to remand the case that they may be made in the Court below (The Code, § 965), but only to the same extent and in such cases as the Superior Court could allow amendment. It is very clear that the Court below could not have allowed the amendment asked here, which is to support the judgment, by allowing the defendant and appellee, Hodges, to amend his answer by setting up the equitable claim of mutual mistake in making the over-payments to the appellants, or a counterclaim (51) for money had and received. Such allegations, if made, are only cognizable in the Superior Court (Murphy v. Harrison,
In Capps v. Capps,
The judgments appealed from are such as could not have been given, if allegations had been properly made, either originally or by (52) amendment, in a case begun like this, before the Probate Court.
The appellee insists, however, that there is no case on appeal. Exceptions to the judgment were filed in ten days after judgment rendered, under Rule 27 of this Court. A case on appeal is necessary to set forth exceptions to evidence and to the charge, but this exception is *69
for want of jurisdiction. This is an error apparent on the face of the record proper, and the Court will take notice of it, though not assigned.The Code, § 957; Thornton v. Brady,
Cited: McNeill v. Hodges, post, 55; Mfg. Co. v. Buxton, post, 75;Peebles v. Braswell,