Faison v. . Williams , 121 N.C. 152 ( 1897 )

Three of the four plaintiffs in a proceeding for partition moved, upon a petition filed in the cause before the clerk, to set aside the report of the commissioners on the ground of newly discovered testimony, and to amend the complaint by inserting an allegation averring sole seizin in themselves, and that the fourth party plaintiff was (153) entitled to no interest in the premises. The clerk refused leave to amend, and confirmed the report, whereupon the petitioners appealed.

It is unnecessary to consider whether the judge could reverse the action of the clerk in refusing leave to amend; for the act of 1887, ch. 276 (amending section 255 of the Code), provides that whenever a cause is sent up to the judge for any ground whatever the "judge shall have jurisdiction" and may either fully determine the cause himself or make orders therein and send it back to be proceeded in by the clerk. Ledbetter v. Pinner,120 N.C. 455; Lictie v. Chappell, 111 N.C. 347; Sudderth v. McCombs,67 N.C. 353; Clark's Code, 198 (2 Ed.). The case having been taken to the judge by the appeal, he was thereupon seized with full jurisdiction, and had power in his discretion to set aside the judgment for newly discovered evidence (Vest v. Cooper, 68 N.C. 131; Carson v. Dellinger, 90 N.C. 226;Flowers v. Alford, 111 N.C. 284) and to permit the amendment asked for. Code, sec. 273; Brendle v. Reese, 115 N.C. 552; Maxwell v. McIver,113 N.C. 288; Sinclair v. R. R., 111 N.C. 507. When the case goes back, the appellant will have an opportunity to answer the allegations in the amended complaint and present such issues of fact and law arising thereon as she may be advised. Had the court below in its discretion refused the amendment, it might have been difficult for the plaintiffs, other than the appellant, to have raised the issues they desire in another proceeding, in the face of the possible estoppel of a judgment in this action.

No error.

Cited: Robinson v. Sampson, ante, 101; Roseman v. Roseman, 127 N.C. 497;Hybart's Estate, 129 N.C. 131; Harrington v. Hatton, ib., 148; In reAnderson, 132 N.C. 247; R. R. v. Stroud, ib., 416; R. R. v. Newton,133 N.C. 136-7; Martin v. Briscoe, 143 N.C. 357; Oldham v. Rieger,145 N.C. 257; Henderson v. McLain, 146 N.C. 333; Bates v. Pridgen,147 N.C. 135; Gregory v. Pinnix, 158 N.C. 152; Williams v. Dunn, ib., 402; Baggett v. Jackson, 160 N.C. 29; Thompson v. Rospigliosi,162 N.C. 153.

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