State Ex Rel. Maggett v. Roberts

12 S.E. 890, 108 N.C. 174

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Clark, J.:

The amendment rested in the discretion of the trial Judge and is not reviewable. Brown v. Mitchell, 102 N C., 347. In that case the same amendments as in the present case were allowed to be made, and after verdict. The Court says, “ If the action had been originally begun and prosecuted against the Sheriff individually, and not against him and the sureties on his official bond, it is obvious that the defence would have been the same, and the same issues would have arisen. The nature of the action has not been so changed as to surprise the defendant by making it necessary to establish any fact not already material under the issues submitted to the jury. The Judge could, in his discretion, refuse the motion to amend, or grant it with or without terms The Code, §§ 272, 273; Carpenter v. Huffsteller, 87 N. C., 273; Reynolds v. Smathers, 87 N. C., 24.”

The exception to the refusal to require the plaintiff to give a prosecution bond is based upon the ground that the affidavit upon which leave to sue in forma pauperis was granted, did not allege that the plaintiff did not have real estite which he could mortgage to secure the costs. The affidavit is in the form required by the statute, The Code, § 210, and it does not exact such allegation.

The first ground of demurrer was improperly overruled (Norman v. Dunbar, 8 Jones, 319; Middleton v. Railroad, 95 N. C., 167), but the error is cured by the subsequent amendment.

The second ground of demurrer was properly overruled. The Code, § 267 i2\ allows the joinder of such causes of action. And although by the amendment the action is no long r for the penalty of the bond, but is for three separate penalties, as to which, if brought separately, a magistrate would have jurisdiction, the action being ex contractu (Katzenstein v. Railroad, 84 N. C., 688), still, as the statute allows-them to be united in the same action, and the aggregated sum demanded is $600, the Superior Court has jurisdiction.. Moore v. Nowell, 94 N. C., 265; Estee’s Code Pleadings, § 1609..

The i hire! ground of demurrer was also properly overruled,, as to the first and s cond causes of action. The penalty given by section 1819 is in the alternative, either for the failure to record the substance of the license issued or for failure to record the substance of the return. The plaintiff sues for the first, and no allegation as to the failure to record the return is necessary, nor was it material that the marriages authorized by the licenses were not celebrated till after the expiration of the defendant’s term of office. The demurrer, however, should have been sustained as to the third cause of action, in that the complaint fails to allege that the defendant issued the license to a person under eighteen years of age “knowingly or without reasonable inquiry.” This is essential, under provisions of The Code, § 1816, to constitute the third cause of action. Bowles v. Cochran, 93 N. C., 398. And in failing to sustain the demurrer in that respect, there was error.

Error.