Patterson v. . Wadsworth

Supreme Court of North Carolina

Patterson v. . Wadsworth

94 N.C. 538

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1886

StatusPublished

Cited by2 cases

This text of 94 N.C. 538 (Patterson v. . Wadsworth) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Patterson v. . Wadsworth, 94 N.C. 538 (N.C. 1886).

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Opinion

Ashe, J.,

(after stating the facts). When the petition in this case came on to be heard, the Clerk refused to make the order of amotion, and on the appeal the Judge held there was error, and remanded the case, directing the Clerk to proceed according to law. That, after the judgment of his Honor that there was error, was his duty, without any directions from the Judge. But what was the proceeding to be pursued according to law ? The effect of the ruling of his Honor, evidently was to restrict the Clerk from any other judgment in the case than that the defendant should be removed from office, if the case, should remain before him, in the same state it was in when the appeal was taken. But when the case was remanded, it was then before the Clerk, as if no appeal had been taken, except that he was concluded from rendering another judgment of like import upon the petition standing alone.

On the 9th of June, 1885, the matter was again heard by the Clerk, and, upon motion of defendant’s counsel, he was permitted to file an answer, to which the plaintiff excepted, and appealed. This presents the question whether there was a proceeding according to law.

“As a general rule, every Court has ample power to permit amendments in the process and pleadings of any suit pending before it. The exception in this, is when the amendment proposed would *541 evade or defeat the provisions of a statute.” Cogdell v. Exum, 69 N. C., 464. But the plaintiff insists that the permission to the defendant to answer, was an evasion of §283 of The Code, by which- Clerks were allowed to enlarge the time of pleading, upon good ca-use shown by affidavit.

In this case, it is stated, the permission to answer was allowed upon the motion of the defendant, but it is not stated that the motion was unsupported by an affidavit, and in the absence of any statement to the contrary, the action of the Court is presumed to be right, upon the principle that what is not shown to be wrong, must be presumed to be right.

There is no error. Let this opinion be certified to the Superior Court of Rowan county, that the case may be remanded to the Clerk of that Court, to be proceeded with according to law.

No error. Affirmed.

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Ashe, J.,

(after stating the facts). When the petition in this case came on to be heard, the Clerk refused to make the order of amotion, and on the appeal the Judge held there was error, and remanded the case, directing the Clerk to proceed according to law. That, after the judgment of his Honor that there was error, was his duty, without any directions from the Judge. But what was the proceeding to be pursued according to law ? The effect of the ruling of his Honor, evidently was to restrict the Clerk from any other judgment in the case than that the defendant should be removed from office, if the case, should remain before him, in the same state it was in when the appeal was taken. But when the case was remanded, it was then before the Clerk, as if no appeal had been taken, except that he was concluded from rendering another judgment of like import upon the petition standing alone.

On the 9th of June, 1885, the matter was again heard by the Clerk, and, upon motion of defendant’s counsel, he was permitted to file an answer, to which the plaintiff excepted, and appealed. This presents the question whether there was a proceeding according to law.

“As a general rule, every Court has ample power to permit amendments in the process and pleadings of any suit pending before it. The exception in this, is when the amendment proposed would *541 evade or defeat the provisions of a statute.” Cogdell v. Exum, 69 N. C., 464. But the plaintiff insists that the permission to the defendant to answer, was an evasion of §283 of The Code, by which- Clerks were allowed to enlarge the time of pleading, upon good ca-use shown by affidavit.

In this case, it is stated, the permission to answer was allowed upon the motion of the defendant, but it is not stated that the motion was unsupported by an affidavit, and in the absence of any statement to the contrary, the action of the Court is presumed to be right, upon the principle that what is not shown to be wrong, must be presumed to be right.

There is no error. Let this opinion be certified to the Superior Court of Rowan county, that the case may be remanded to the Clerk of that Court, to be proceeded with according to law.

No error. Affirmed.

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Bluebook (online)

94 N.C. 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-wadsworth-nc-1886.

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