Swain v. . Burden

Supreme Court of North Carolina

Swain v. . Burden

32 S.E. 319, 124 N.C. 16, 1899 N.C. LEXIS 5

CourtSupreme Court of North Carolina

DecidedFebruary 21, 1899

StatusPublished

Cited by8 cases

This text of 32 S.E. 319 (Swain v. . Burden) 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

Swain v. . Burden, 32 S.E. 319, 124 N.C. 16, 1899 N.C. LEXIS 5 (N.C. 1899).

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Opinion

Faiecloth:, 0. J.

This is an action against the defendant as Sheriff for the penalty of $500 for a false return, as provided in The Code, section 2079. After the action was begun, the defendant, on affidavits, moved the Court to be allowed to amend his return so as to speak the truth. The motion was allowed and the plaintiff appealed.

The only matter for this Court is the power of the Superior Court Judge to allow the amendment to be made. The power of the Judges to allow amendments in process, etc., is broad, both by statute and the inherent power of the Court. The experience of every lawyer demonstrates the propriety and policy of the exercise of such power in many cases. Without *18 it, justice would often suffer and the rights of litigants would be sacrificed. The necessity of such power grows out of business transactions of men and their liability to make mistakes and oversights. The public good and private interest of the people justify and require the lodgment of such power in the Court, and experience has so demonstrated.

All will agree that in meritorious cases the power should be exercised. We must assume that the power will be used 'only in proper cases, and in all others it will be withheld. Who can better discriminate than the presiding Judge? We think from the authorities and the reason of the matter, that the discretionary power must always be present with the presiding Judge. Judges, like all other citizens, are amenable for any abuse of their powers or misconduct, and we like to assume that their duties will be performed faithfully and honestly.

This question has been so often under review, as appears from the citations under section 20Y9 of The Code, that we find nothing new to add to what has been said . In the recent case of Stealman v. Greenwood, 113 N. C., 355, and the cases noted therein, the question is well considered and decided.

Affirmed.

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Faiecloth:, 0. J.

This is an action against the defendant as Sheriff for the penalty of $500 for a false return, as provided in The Code, section 2079. After the action was begun, the defendant, on affidavits, moved the Court to be allowed to amend his return so as to speak the truth. The motion was allowed and the plaintiff appealed.

The only matter for this Court is the power of the Superior Court Judge to allow the amendment to be made. The power of the Judges to allow amendments in process, etc., is broad, both by statute and the inherent power of the Court. The experience of every lawyer demonstrates the propriety and policy of the exercise of such power in many cases. Without *18 it, justice would often suffer and the rights of litigants would be sacrificed. The necessity of such power grows out of business transactions of men and their liability to make mistakes and oversights. The public good and private interest of the people justify and require the lodgment of such power in the Court, and experience has so demonstrated.

All will agree that in meritorious cases the power should be exercised. We must assume that the power will be used 'only in proper cases, and in all others it will be withheld. Who can better discriminate than the presiding Judge? We think from the authorities and the reason of the matter, that the discretionary power must always be present with the presiding Judge. Judges, like all other citizens, are amenable for any abuse of their powers or misconduct, and we like to assume that their duties will be performed faithfully and honestly.

This question has been so often under review, as appears from the citations under section 20Y9 of The Code, that we find nothing new to add to what has been said . In the recent case of Stealman v. Greenwood, 113 N. C., 355, and the cases noted therein, the question is well considered and decided.

Affirmed.

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Bluebook (online)

32 S.E. 319, 124 N.C. 16, 1899 N.C. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swain-v-burden-nc-1899.

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