Herndon v. . Insurance Co.

13 S.E. 188, 108 N.C. 648

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

MekrijioN, C. J.:

No doubt the Court below might, in its discretion, have allowed such amendment as that prayed for, if a proper motion for the purpose had been made in apt time; but it is questionable whether such motion could have been allowed after the lapse of the time within which application might be made to remove the case to the Circuit Court of the United States. We need not, however, decide how this might be, because the application to so remove the case was denied, the defendant appealed to this Court from the order of denial and the latter Court affirmed the order. Thus the application was ended, became res adjudicata, and the Court below had no authority to set the order of denial affirmed aside, or at all interfere with it, or allow such amendment as that asked for, and denied upon the ground that the motion came “too late, the defendant having heretofore filed its answer.” This denial does not properly rest upon the ground thus assigned, but upon the other ground above indicated. Nor does the fact that the order so appealed from and affirméd by this Court was to be treated as interlocutory or incidental at all alter the case. The application was ended by a regular and orderly adjudication which was, as to it, final. Jones v. Thorne, 80 N. C., 72; Roulhac v. Brown, 87 N. C., 1; Pasour v. Lineberger, 90 N. C., 159; Wilson v. Lineberger, 82 N. C., 412; Moore v. Grant, 92 N. C., 316; Wingo v. Hooper, 98 N. C., 482; Dobson v. Simonton, 100 N. C., 56; White v. Butcher, 97 N. C., 7.

If it be granted that the defendant could have made a fresh application to remove the case, it did not do so; and if it had done so, the application could not have been allowed, because it would have been made too late — not within the time such applications might be made.

Order affirmed.