Sheffield v. . Alexander

Supreme Court of North Carolina

Sheffield v. . Alexander

140 S.E. 726, 194 N.C. 744, 1927 N.C. LEXIS 201

DecidedDecember 21, 1927

StatusPublished

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Sheffield v. . Alexander, 140 S.E. 726, 194 N.C. 744, 1927 N.C. LEXIS 201 (N.C. 1927).

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Opinion

Stacy, C. J.

Over objection of the National Surety Company the referee allowed Wiley Davis -to come in as a party plaintiff and adopt the complaint previously filed by his copartner, W. H. Porter. The authority of the referee to allow amendments to pleadings and to make new parties is expressly given by C. S., 576. Rosenbacher & Bro. v. *745 Martin, 170 N. C., 236, 86 S. E., 785; Blanton v. Bostic, 126 N. C., 418, 35 S. E., 1035; Koonce v. Pelletier, 115 N. C., 233, 20 S. E., 391.

It is contended by tbe National Surety Company that by tbe amendment above mentioned a new and independent cause of action was thereby introduced, entitling it to bave tbe proceeding dismissed on demurrer because of a misjoinder of botb parties and causes of action. Bank v. Angelo, 193 N. C., 576, 137 S. E., 705. It is sufficient to say, in answer to tbis position, tbat tbe record shows no more than a simple objection and exception noted at tbe time, and neither tbe referee nor tbe judge of tbe Superior Court was asked to rule upon tbe question now sought to be presented. Tbe demurrer, upon tbe ground stated, comes too late. Godwin v. Jernigan, 174 N. C., 76, 93 S. E., 443; C. S., 518.

Nor is there any exceptive assignment of error properly raising tbe question, debated on brief, as to whether tbe bringing in of Wiley Davis as a party plaintiff so changed tbe original cause of action instituted in tbe name of W. H. Porter alone, as to bar a recovery on tbe ground tbat said claim was not presented within tbe time allowed by tbe statute. Chapter 160, sec. 3, Public Laws 1923; State Prison v. Bonding Co., 192 N. C., 391, 135 S. E., 125. But even if tbe question were before us, it would seem tbat C. S., 547, is broad enough to warrant tbe action of tbe referee in allowing tbe amendment, which was later approved by tbe judge of tbe Superior Court. 20 R. C. L., 920; 30 Cyc., 567.

A careful perusal of tbe record leaves us with tbe impression tbat tbe cause has been beard and determined substantially in accord with tbe principles of law applicable and tbat tbe judgment ought to be upheld.

Affirmed.

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Stacy, C. J.

Over objection of the National Surety Company the referee allowed Wiley Davis -to come in as a party plaintiff and adopt the complaint previously filed by his copartner, W. H. Porter. The authority of the referee to allow amendments to pleadings and to make new parties is expressly given by C. S., 576. Rosenbacher & Bro. v. *745 Martin, 170 N. C., 236, 86 S. E., 785; Blanton v. Bostic, 126 N. C., 418, 35 S. E., 1035; Koonce v. Pelletier, 115 N. C., 233, 20 S. E., 391.

It is contended by tbe National Surety Company that by tbe amendment above mentioned a new and independent cause of action was thereby introduced, entitling it to bave tbe proceeding dismissed on demurrer because of a misjoinder of botb parties and causes of action. Bank v. Angelo, 193 N. C., 576, 137 S. E., 705. It is sufficient to say, in answer to tbis position, tbat tbe record shows no more than a simple objection and exception noted at tbe time, and neither tbe referee nor tbe judge of tbe Superior Court was asked to rule upon tbe question now sought to be presented. Tbe demurrer, upon tbe ground stated, comes too late. Godwin v. Jernigan, 174 N. C., 76, 93 S. E., 443; C. S., 518.

Nor is there any exceptive assignment of error properly raising tbe question, debated on brief, as to whether tbe bringing in of Wiley Davis as a party plaintiff so changed tbe original cause of action instituted in tbe name of W. H. Porter alone, as to bar a recovery on tbe ground tbat said claim was not presented within tbe time allowed by tbe statute. Chapter 160, sec. 3, Public Laws 1923; State Prison v. Bonding Co., 192 N. C., 391, 135 S. E., 125. But even if tbe question were before us, it would seem tbat C. S., 547, is broad enough to warrant tbe action of tbe referee in allowing tbe amendment, which was later approved by tbe judge of tbe Superior Court. 20 R. C. L., 920; 30 Cyc., 567.

A careful perusal of tbe record leaves us with tbe impression tbat tbe cause has been beard and determined substantially in accord with tbe principles of law applicable and tbat tbe judgment ought to be upheld.

Affirmed.

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140 S.E. 726, 194 N.C. 744, 1927 N.C. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheffield-v-alexander-nc-1927.

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