Thomas v. . Womack

Supreme Court of North Carolina

Thomas v. . Womack

64 N.C. 657

CourtSupreme Court of North Carolina

DecidedJune 5, 1870

StatusPublished

Cited by5 cases

This text of 64 N.C. 657 (Thomas v. . Womack) 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

Thomas v. . Womack, 64 N.C. 657 (N.C. 1870).

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Opinion

BodmaN, J.

Section 132, C. C. P., by its language taken generally, confers on the Court the power to make the amendment allowed in this case. But it is contended by the defendant, that however general may be the words of a statute, they will never be construed to have, an effect In in violation of manifest principles of justice. This we admit. The defendant further contends that such would be the effect of this amendment, as it would bring a party into Court without notice: This we do not admit. The defendant had notice to appear before the Clerk, and did appear and plead in bar of the action. It is true that in consequence of the Act of 1868-’9, ch. 76, the Clerk at the date of the summons, did not have jurisdiction either to hear the case, or to have the pleadings conducted, and the issues made up before him. The defendant contends that, therefore, the Clerk must be regarded for the purposes of this action, as no Court at all, and that the summons and appearance are nullities.

We concede that the summons was irregular, and that the defendant might have set it aside on motion, or by demurrer, and that no consent on his part could waive the want of jurisdiction. But the Clerk is, for certain purposes, a part of the Superior Court which had jurisdiction of the action, and as such, he has a certain jurisdiction and certain powers. *659 The defect in the summons is, that it was not returnable' before the Court in term time. A mistake in the return day may be amended if the defendant has notice of the true day, or may be waived by his appearance and pleading on the true day. In this case, as the defendant had actual notice to appear, and did appear, and had also notice that the case was transferred to the Superior Court at its regular term, and of the motion to amend; and, as he cannot be prejudiced in any defence which he . may have, we do not see how any principle of natural justice forbids the amendment. If the defendant had gone to trial upon the issues joined in the Clerk’s 'office, could he contend that a verdict found against him was a nullity ? We think the Superior Court had power to allow the amendment. The terms on which it should have been allowed, were within the discretion of that Court, and do not come within our review.

There is no error. Let this Opinion be certified.

Pee Ctjbiam. Affirmed.

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BodmaN, J.

Section 132, C. C. P., by its language taken generally, confers on the Court the power to make the amendment allowed in this case. But it is contended by the defendant, that however general may be the words of a statute, they will never be construed to have, an effect In in violation of manifest principles of justice. This we admit. The defendant further contends that such would be the effect of this amendment, as it would bring a party into Court without notice: This we do not admit. The defendant had notice to appear before the Clerk, and did appear and plead in bar of the action. It is true that in consequence of the Act of 1868-’9, ch. 76, the Clerk at the date of the summons, did not have jurisdiction either to hear the case, or to have the pleadings conducted, and the issues made up before him. The defendant contends that, therefore, the Clerk must be regarded for the purposes of this action, as no Court at all, and that the summons and appearance are nullities.

We concede that the summons was irregular, and that the defendant might have set it aside on motion, or by demurrer, and that no consent on his part could waive the want of jurisdiction. But the Clerk is, for certain purposes, a part of the Superior Court which had jurisdiction of the action, and as such, he has a certain jurisdiction and certain powers. *659 The defect in the summons is, that it was not returnable' before the Court in term time. A mistake in the return day may be amended if the defendant has notice of the true day, or may be waived by his appearance and pleading on the true day. In this case, as the defendant had actual notice to appear, and did appear, and had also notice that the case was transferred to the Superior Court at its regular term, and of the motion to amend; and, as he cannot be prejudiced in any defence which he . may have, we do not see how any principle of natural justice forbids the amendment. If the defendant had gone to trial upon the issues joined in the Clerk’s 'office, could he contend that a verdict found against him was a nullity ? We think the Superior Court had power to allow the amendment. The terms on which it should have been allowed, were within the discretion of that Court, and do not come within our review.

There is no error. Let this Opinion be certified.

Pee Ctjbiam. Affirmed.

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64 N.C. 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-womack-nc-1870.

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