Lloyd v. Swansboro Land & Lumber Co., 167 N.C. 97 (1914)

Oct. 28, 1914 · Supreme Court of North Carolina

167 N.C. 97

SALLIE A. LLOYD et al. v. SWANSBORO LAND AND LUMBER COMPANY.

(Filed 28 October, 1914.)

Judgments Conditional — Courts—Pleadings—Amendments—Discretion.

An order allowing a plaintiff to amend bis complaint witbin thirty days, with provision that if he fail either to file 'his complaint within the time allowed or pay the cost imposed as a condition, the action shall stand dismissed without further order, is an alternative or conditional judgment and void, leaving it open to the discretion of a succeeding judge to allow the amended pleading to be filed.

Appeal by defendant from Daniels, J., at July Term, 1914, of ONSLOW.

Appeal from an order of the court allowing plaintiffs to file amended complaint upon payment of costs.

Dufy & Koonce, T. G. Wooten, J. F. Wooten, and G. V. Gowper for plaintiffs.

Frank Thompson, D. F. Henderson, and L. B. Varser for defendants.

Bbown, J.

At April Term, 1914, Whedbee, judge, made an order in this cause, allowing the plaintiffs to file amended complaint within thirty days, which order provided that if the plaintiffs fail either to file such amended complaint or to pay the cost as shown within thirty days from the adjournment of this term, then this action shall stand dismissed without further order.

The order could not be self-executing, and the condition is a nullity. The judge could not delegate to any one the power to enter up judgment if the amended complaint was not filed.

Alternative or conditional judgments are void. This left it open to the discretion of a succeeding judge to allow the amended pleadings to be filed. Strickland v. Cox, 102 N. C., 411; Woodcock v. Merriam, 122 N. C., 734; Church v. Church, 158 N. C., 564.

Affirmed.