Sheldon v. . Kivett

14 S.E. 970, 110 N.C. 408

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

Clark, J.:

The original affidavit was defective in the particulars in which it was amended. Faulk v. Smith, 84 N. C., 501. But it is settled that it could be amended by leave of the Court, granted in its discretion, even though the first affidavit were wholly insufficient. Brown v. Hawkins, 65 N. C., 645; Pope v. Frank, 81 N. C., 180; Bank v. Blossom, 92 N. C., 695; Penniman v. Daniel, 93 N. C., 332; Cushing v. Styron, 104 N. C., 338. In those cases the action began in the Superior -Court. For a stronger reason, the power of amendment existed here, where the action began, in a Magistrate’s Court, in which the same regularity of procedure is not to be expected, and The Code, § 908, provides that in such cases the Court can amend “ either in form or substance.” State v. Norman, at this term; Manufacturing Co. v. Barrett, 95 N. C., 36.

In the affidavit by the agent, it is not required that the reasons why it was not made by the principal should be set out, as in the verification of pleadings. Bruff v. Stern, 81 N. C., 183. After the amendment of the affidavit in this case, it was again sworn to. Bank v. Frankford, 61 N. C., 199. After the warrant was issued, publication for four successive weeks at the court-house and four other public places was made, as required by The Code, § 350.

From the leave to amend, no appeal lay. Lippard v. Roseman, 72 N. C., 427; Henry v. Cannon, 86 N. C., 24; Wiggins v. McCoy, 87 N. C., 499; Jarrett v. Gibbs, 107 N. C., 303. But the refusal of the motion to dismiss the attachment affects a substantial right, and from it, as from the refusal of a motion to vacate an order of arrest, an appeal lies. Roulhac v. Brown, 87 N. C., 1. It would not lie from a refusal to dismiss an action, since there an exception should be noted and the ruling brought up for review on appeal from the final judgment, if it is against the defendant. Plemmons v. Imp. Co., 108 N. C., 614; Guilford County v. Georgia Company, 109 N. C., 310.

No error.