Simpson v. . Simpson

64 N.C. 427 | N.C. | 1870

The order in question had been made in the County Court of Union at October Term 1865, and had been granted at the motion of the defendant without notice to the plaintiff; its effect was to amend certain successive executions which had issued in a State case theretofore constituted in that Court against one John (428) W. Simpson, by changing them from originals into "alias" and "pluries" executions. These executions had been issued from time to time upon a judgment rendered at April Term 1853, and terminated with one returned to January Term 1857; a sale of land having been made under the last, January 5th, 1857, (under a levy dated Nov. 10th, 1856,) to one Helms, under whom the defendant claimed. The plaintiff claimed the land under a deed from John W. Simpson, executed Nov. 23d 1853. On the face of these executions they were all originals, but the second in the series was endorsed by the Clerk "alias Fi. Fa.," and those succeeding, "pluries Fi. Fa."

His Honor made a rule upon the defendant to show cause why the former order should not be rescinded, and, upon hearing it, made such rule absolute, and the defendant appealed. 1. An amendment is not proper if it affect the rights of third persons.Bank of Cape Fear v. Williamson, 24 N.C. 147; Phillipse v. Higdon,44 N.C. 380.

2. The endorsement, is no part of the record: State v. Roberts.19 N.C. 540; State v. Barnes, 52 N.C. 20. See also McIver v. Ritter, 60 N.C. 605. The endorsement of the words "alias" and "pluries," formed no part of the record, and could not have the effect of changing their tenor from originals to alias and pluries executions. This was conceded by the defendant when she sought to have them amended by an order of the County Court. However extensive the powers of the Courts may be in respect to amendments, they certainly have not the power to allow them without notice, when they change in substance the process from what it was when (429) issued, if the rights of third persons be thereby affected:Bank of Cape Fear v. Williamson, 24 N.C. 147; Phillipse v. Higdon,44 N.C. 380.

The case before us is a strong illustration of the injustice of such a course. An amendment is allowed in 1864 without notice to the party interested, which in effect reached back and disturbed a title acquired in 1853. The record of the County Court having been transferred to the Superior Court, his Honor was correct in vacating the order and the amendments made in pursuance thereof by the County Court in 1864.

Per curiam.

Affirmed.

Cited: Hatch v. R. R., 183 N.C. 624; Mintz v. Frink, 217 N.C. 104.