At the term of the court to which the referee made his report the defendant was allowed to file, as an amendment to his answer, the plea of the statute of limitations. The rule seems to (233) be well settled by the decisions of this Court that amendments to pleadings are left to the discretion of the presiding judge. InGilchrist v. Kitchin, 86 N.C. 20" court="N.C." date_filed="1882-02-05" href="https://app.midpage.ai/document/gilchrist-v--kitchen-3648231?utm_source=webapp" opinion_id="3648231">86 N.C. 20, on that point, the Court said: "But independent of The Code, we hold that the right to amend the pleadings of a cause and allow answers and other pleadings to be filed at any time is an inherent power of the Superior Courts which they may exercise at their discretion unless prohibited by some statutory enactment, or unless vested rights are interfered with." There are some exceptions, as where an amendment should be desired to make a pleading conform to facts proved, it should not be allowed if it changes the claim or defense; or if an amendment is allowed in favor of one party to the suit and a corresponding amendment is rendered thereby necessary on the part of the adverse party a refusal to allow the latter would be appealable.Knott v. Taylor, 96 N.C. 553" court="N.C." date_filed="1887-02-05" href="https://app.midpage.ai/document/knott-v--taylor-3649927?utm_source=webapp" opinion_id="3649927">96 N.C. 553; Brooks v. Brooks, 90 N.C. 142" court="N.C." date_filed="1884-02-05" href="https://app.midpage.ai/document/brooks-v--brooks-3650814?utm_source=webapp" opinion_id="3650814">90 N.C. 142. In the case before us, however, the rule prevails and the matter was therefore in the discretion of the court. A hardship seems to have been put upon the plaintiff in the allowing of the amendment, but as the matter was in the discretion of his Honor, we cannot review it. The complaint alleged that the defendant owed the plaintiff a balance for each of several years; more than three years, however, having elapsed since the date of the last item in the account. The answer was a simple denial of the indebtedness.
Upon the motion of the plaintiff an order of reference was made to have an account stated between the parties. This was a consent order, no objection having been made by the defendant. After the account was stated and reported by the referee, the defendant finding that it was against him, was allowed to put in the plea of the statute of limitations. The defendant knew that he had this plea as well before the (234) reference as afterwards. It looked like trifling with the court to go to trial on the merits of his case and, after being defeated, to make, by way of amendment, a defense of the statute of limitations, which he knew he could avail himself of at the start. But, as we have said, the matter is not an open question. That part of the judgment which concerned the plea of the statute was in this language: "The court allowed the motion of defendant for leave to amend the answer and plead the statute of limitations, and defendant filed his plea accordingly. And thereupon the court doth adjudge that the plaintiff's cause of action is barred by the statute of limitations." The judgment further declared "that the defendant's exceptions to the report and account filed are allowed, . . . and the plaintiff's application for an injunction to restrain the defendant from selling the land to collect the debt referred to in the pleadings as per note and mortgage, is disallowed." The last was clearly only the conclusion of the court as to the legal effect of the statute of limitations upon the indebtedness of the defendant to the plaintiff as set out in the complaint; for it was made without any finding of facts by his Honor. When the judge finds no facts it is presumed that he adopted those found by the referee. McEwen v. Loucheim, 115 N.C. 348" court="N.C." date_filed="1894-09-05" href="https://app.midpage.ai/document/mcewen-v--loucheim-3670882?utm_source=webapp" opinion_id="3670882">115 N.C. 348;Bancroft v. Roberts, 91 N.C. 363" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/barcroft--co-v-roberts--co-3653551?utm_source=webapp" opinion_id="3653551">91 N.C. 363. But it is apparent that he did not adopt the findings of the referee, for the referee found them all in favor of the plaintiff and the judgment is against the plaintiff. In order that the defendant's exceptions to the report of the referee should have been sustained it was necessary for the court to have reviewed and set aside the facts found by the referee and to have found the facts himself in favor of the defendants. This he did not do. As, (235) therefore, there was no finding of facts by his Honor, and the findings of the referee were not approved, there is error in that part of the judgment which sustains the defendant's exceptions and denies the application for the injunction. There is partial error in the judgment concerning the plea of the statute of limitations. The plea of the statute was available only as to whatever amount was found to be due by the defendant to the plaintiff in excess of the amount which the plaintiff owed the defendant for the horse, the consideration of the note and mortgage. If it should be found that the defendant owes to the plaintiff any amount, that amount by force of the law is a payment on the debt due by the plaintiff to the defendant on note and mortgage; and if the
defendant's indebtedness should exceed the amount due by the plaintiff for the horse, then the plea of the statute will apply to the excess. There was error, and the case is remanded to the end that the report and the exceptions thereto filed by the defendant may be heard and the law in reference to the statute of limitations be applied as herein declared.
Error.
Cited: Balk v. Harris, 130 N.C. 383; Ramsey v. Browder, 136 N.C. 253.
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