Parker v. . Harden

28 S.E. 962, 122 N.C. 111, 1898 N.C. LEXIS 204

• Court: Supreme Court of North Carolina
• Decided: February 22, 1898
• Status: Published

Opinion

Clark, J.:

When the case was here before (121 N. C., 51) the Court held that there had been error in refusing the defendant’s prayer for instruction that the action was haired by the Statute of Limitations. When the case went back the Court below permitted the plaintiff to amend his complaint. Tile amendment allowed was such as rested in the discretion of the Court and was not reviewable; but had it been appealable the appeal would be dismissed as premature, since the proper course was to note an exception and appeal from the final judgment. It is true that the error on the former trial was such that its correction, as the pleadings then stood, would have decided the case for the defendant, but this did not necessarily deprive the Court of the power to permit an amendment of the complaint. Bernhardt v. Brown, 118, N. C., at p. 700. The amendment neither “asserts a cause of action wholly different from that set out in the original complaint nor changes the subject matter of the action nor deprives the defendant of defences he would have had to anew action.” King v. Dudley, 113 N. C., 167, and cases cited Clark’s Code (2nd Ed.), pp. 223, 224.

Appeal dismissed.