McBride v. . Welborn

26 S.E. 125, 119 N.C. 508

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

EaieCloth, C. J. :

This action commenced before a just-tice of the peace upon notice or summons to show cause why judgment should not be entered against defendant for cost of this action. In the superior court, after the jury were empaneled, the defendant moved to quash and dismiss the proceeding for defective summons, the cause having been previously tried in the superior court, which trial resulted in a mistrial. The motion was refused, and on motion the judge allowed plaintiff to amend his summons. Defendant excepted and appealed.

The motion came too late after the defendant had appeared and engaged in the trial on the merits of the controversy. Redmond v. Mullenax, 113 N. C., 505. The court had the power to allow the amendment. Code, Sec. 908. Affirmed.