Phillips v. . Holland , 78 N.C. 31 ( 1878 )

The alteration in the summons and requisition was not the act of an unauthorized person, in which case it might have been stricken out and the original reading restored; but it was made (33) by the clerk who issued them, at the instance of the plaintiff. when they were altered by being directed to the sheriff of Forsyth, they became new and original process of the same force and effect as if they had been originally written as they then stood. Whether the alteration relieved the sheriff of Davidson from any liability previously incurred by him it is unnecessary to say. When these papers were delivered to the sheriff of Forsyth he became bound to obey them. The case says that no written return was ever made on them, but it does not appear that the sheriff of Forsyth did not act on them in some way, although he did not seize the mules. If he did act on them, he is clearly entitled that they shall remain as they were when in his hands, for his protection and as proof of his authority. Even if he did not act under them, we think that both he and the defendant in them, and the sheriff of Davidson, had acquired a right that they should remain as they were when in the hands of the sheriff of Forsyth, as evidence of the fact that they had been in his hands, and that such a suit had been begun.

It is not denied that process may in many cases be amended, but not where third persons have acquired rights, and the amendment is in such a matter that their rights may be prejudiced by it. Bank v. Williamson,24 N.C. 147; Smith v. Low, ibid., 457.

The interest of the sheriff of Davidson that the process shall remain as it was before the proposed amendment was made is like in kind and, for aught that we can see, equal in degree with that of the plaintiff to effect the amendment. It may be that the plaintiff without the amendment may be allowed to prove the facts upon which he relies to fix liability on the sheriff of Davidson; and it may be that if the amendment were made, the sheriff would still be allowed to prove any facts connected with the several forms of the process which he may deem material. We have no opinion on these questions. The amendment would certainly shift the burden of proof of a material fact from the plaintiff, and throw it on the sheriff, to the benefit of which we do not see that the plaintiff has made out any superior claim, and in this respect (34) he comes within the principle of the cases cited.

It is not like a motion to amend a record so as to enable it to speak the truth, when by any inadvertence it does not, which is a matter of right. There is no mistake here. The process when issued the last time was just as the plaintiff wanted it, and it had vitality and force. For these reasons we think the judge erred in allowing the amendment.

Such being our opinion on this question, it is unnecessary to consider the others argued here. We may say, though, that we see nothing irregular in the judge suspending the trial of a case in order to consider the motion to amend. The order of procedure in a court must be almost entirely in the discretion of the presiding judge, and it is not pretended that there was in this case any manifest abuse of that discretion.

There was error in allowing the amendment. Let this opinion be certified to the Superior Court of Davie, in order that the error may be corrected, and the process restored to the tenor it had before the amendment was made. The appellant will recover costs in this Court.

PER CURIAM. Reversed.

Approved: Henderson v. Graham, 84 N.C. 498; Martin v. Young, 85 N.C. 157.

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