Gorgon v. Pintsch Gas Co.

178 N.C. 435

• Court: Supreme Court of North Carolina
• Decided: November 12, 1919
• Status: Published

Opinions

Claek, C. J.

The defendant, upon its own showing, failed “to give the matter that amount of attention which a man of ordinary prudence usually gives to his important business,” and therefore would not be entitled to set aside the judgment for excusable neglect, even if such motion had not been barred by the lapse of more than a year. • Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 394, and citations thereto in Anno. Ed.

The case stands, therefore, upon the power of the court, in its discretion, to allow the amendment asked for. Rev., 507, provides that the “Judge or court may, before and after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect,” etc. The language of the statute itself shows that this is a discretionary power, and it has always been held that the granting or refusal of amendments in the cases named is not reviewable by appeal except in cases of palpable abuse. See citations to Pell’s Revisa!, see. 507. Also, Sheldon v. Kivett, 110 N. C., 411, and cases there cited.

The evidence in this case fully warranted the findings of fact in the judgment, and the grant of the leave to amend. There is no question upon the affidavits on both sides that the Pintsch Compressing Company was’the party charged with committing the tort sued on; that the general manager of the compressing company was served with summons; that he sent it to the general office in New York, which employed counsel, and at his death employed another counsel, and later, on the death of the latter counsel, employed another; that the company sued was known generally by the name mentioned in the summons, which is held sufficient, even as to’ defendant’s in an indictment, subject to plea in abatement in which the defendant must give its true name. The general manager in New York, in his affidavit, states that his recollection is that a second srpnmons was served, giving the name of defendant as the “Pintsch Compressing and Gas Company.” There is no indication that tbe defendant suffered any prejudice by reason of tbe misnomer, and it bas waived any objection by not giving its true name by plea in abatement.

“A misnomer does not vitiate provided tbe identity of tbe corporation or person witb tbat intended by tbe parties is apparent, whether it is in a deed, Asheville Division v. Aston, 92 N. C., 584, or in a judgment, or in a criminal proceeding, McCrae v. Starr, 5 N. C., 252.”

Tbe judgment by default and inquiry in December, 1913, and tbe judgment final in March, 1918, upon tbe verdict of tbe jury, were, both taken regularly “according to tbe course and procedure of tbe courts.” There is no question tbat this appellant bad tbe fullest knowledge tbat tbe action was against itself, and tbat it bad tbe amplest opportunity to defend.

Tbe amendment rested in the discretion of tbe court.

Affirmed.