Den on dem. Clements v. Van Norden's Heirs, 20 N.C. 235, 3 Dev. & Bat. 235 (1839)

June 1839 · Supreme Court of North Carolina

20 N.C. 235, 3 Dev. & Bat. 235

DEN ON DEM. OF PARMELIA CLEMENTS et al. vs. HADRIANUS VAN NORDEN’S HEIRS et al.

The fixing the terms on which an‘amendment is allowed, is a matter of discretion with the court which allows it, and is not the proper subject of appeal.

Ejectment. At September Term, 1838, of the Superior Court of Law for Pitt county, the attorney for the lessors of the plaintiff moved the court for. leave to amend the declaration, by adding a new count on a demise of some other person. The cause had been pending in the County and Superior Courts from February Term, 1835, of the County Court. The motion for the amendment ivas resisted t>n behalf of the defendants, unless upon the condition of the lessors of the plaintiff paying all the costs incurred in the cause up to the time of granting the order. His honor Judge Saunders, however, permitted the amendment on the pay-. ment of the costs of the term only. From this order the defendants were permitted by his Honor to appeal.

June 1839

Iredell and J H. Bryan for the defendants. '

The Attorney General for the plaintiffs’ lessors.

Daniel, Judge,

after stating the case as above, proceeded: The act of Assembly empowers the court in, which any action shall be pending, to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just. 1 Rev. Stat. ch. 3, sec. 1. It was discretionary with the Superior Court to fix the terms on which the amendment was to be permitted. The exercise of this just discretion, as to terms, vested by the Legislature in the Court which allows of amendments, is not the proper subject of appeal. The discretion as to just terms when an amendmentis made, is left by the Legislature solely with the court that exercises the power of amendment. This court has no criterion or standard to ascertain whether the discretion exercised by the Judge below was just or not. We are, therefore, of the opinion that this appeal must be dismissed.

Per Curiam. Appeal dismissed.