Jarrett v. . Gibbs

12 S.E. 272, 107 N.C. 303

• Court: Supreme Court of North Carolina
• Decided: September 5, 1890
• Status: Published

Opinion

Claek, J.:

The Code, §273, empowers the Court, before or after judgment, to “amend any pleading, process or proceeding by adding or sinking out the name of any party.” The refusal or granting of such motion is a matter of discretion and not reviewable, unless the refusal is placed, as in this casé, on the wrant of power, and then an appeal lies. Henderson v. Graham, 84 N. C., 496.

Even if the effect of the amendment had been to allow a substitution of one plaintiff for another, it would have been within the competency of the Court. Reynolds v. Smathers, 87 N. C , 24, and cases there cited. Jarratt, however, had been made a party two years before, without exception. The case stood, therefoie, as if both plaintiffs had been named in the original process. The motion of the plaintiff Murphy to be allowed to wi-hdraw and to amend the process and pleadings by striking out her name, was within the power and rested in the discretion of the Court.

Per Curiam. Error.