Clark v. Hellen, 23 N.C. 421, 1 Ired. 421 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 421, 1 Ired. 421

ELIJAH CLARK, Adm’or. of ANTHONY DAVIS, vs. ISAAC HELLEN.

The Couithas a discretionary power to permit an original writ to be amended, by adding to it the seal of the Court, where that has been omitted before the writ issued.

The case of Den ex dem. Purcell^s. McParland, 1 Iredell’s Rep. 34, cited and approved.

This was an action of replevin, returnable to Craven Superior Court of Law, Fall Term, 1840. At the Spring Term, 184.1, the motion, from the judgment on which the appeal was taken by permission of the Court, was made and allowed by his Honor Judge Bailey. The following is the case transmitted to this Court.

This was a motion made by the plaintiff; to affix the seal of the Court to the writ of replevin, which had issued at the instance of the plaintiff, in his name, as administrator of Anthony Davis, dec’d. against the defendant in this case, to tlie County of Carteret, where the defendant resided. The plain-*tiff exhibited in evidence the writ of replevin, and the bond taken by the Sheriff of Carteret in executing said writ. It appeared in evidence, that the writ was issued by the Clerk of Craven Superior Court, without affixing the seal of the Court to the same, to the County of Carteret, against the defendant, where the defendant resided, and was returned to the October Term, 1840, of Craven Superior Court; that the defendant declined to appear by attorney or otherwise, or to file any pleas in the suit, but that he was present at this Term of said Court, (April Term, 1841,) when this motion was made, and resisted the same. And it further appeared in evidence, that the defendant was notified by the plaintiff at the return Term of said writ, of his intention to move this amendment. His Honor, after hearing the argument of counsel on each side, upon these facts granted the motion, ar,d ordered the Clerk to affix the seal of Craven Superior Court of Law to the writ of replevin. And from this judgnaent or order of the Court, the defendant prayed his Honor for permission to appeal to the Supreme Court, which was duly granted.

James W. Bryan for the appellant,

contended that the writ as it issued, was utterly null and void ; that this case differed from those in which the Court had permitted writs of execution on judgments to be amended by affixing the seal, because in the latter, there was something to amend by ; in the former, nothing; and also, that the appeal here was not from a discretionary judgment, but from an error in point of law. And he cited the following authorities in support of these positions: State v. Raiford, 2 Dev. 214.— Rev. St. c. 4, s. 23. Finlay v. Smith, 4 Dev. 97. Rev. St. c. 31, s. 125. Bank of Cape Fear v. Seawell, 3 Dev. 279. Weaver v. Cryer, 1 Dev. 337. Ba. Abridg. title void and voidable. 3 Blac. Com. 273, 282. Burt v. Jackson, 3 Moore and, Scott, 552, 2 Bowl. 747. Wilson v. Joy, 2 Bowl. 182. Bender v. Askew, 3 Bev. 150. 2 Bowl. 616. 3 Ibid, 554, cited in 3d Chitty’s Geni. Prac. 524. 18 Eng. Com. L. Rep. 115, 118. 3 Chitty’s Geni. Prac. 74, 516, 522. 3 Bowl. 678, cited in 3d Chitty’s Geni. Prac. 516. Bouvier’s Law Bid. nullity, 196.

John H. Bryan for the plaintiff,

relied upon the decisions of this Court, in the case of Ben ex dem. Purcell v. McFarland, 1 Iredell’s Rep. 34, and the authorities there cited, contending that there Was no difference in the power of the Court, as to the amendment in this respect, of writs of execution and original writs.

Daniel, J.

It has been frequently decided in this Court, that, where the Clerk has omitted to affix the seal of his Court to writs of executions issued out of the County, the same may be amended by his being directed to affix the seal, nunc pro tunc. The authorities are all collected in the case of Den ex dem. Purcell v. McFarland, 1 Iredell’s Rep. 34. But it is said, this being an original writ, the same dulgence ought not to be allowed, and that in fact it is void. The answer is, and so is an execution void until it is sealed. It is further objected, that there is nothing to amend by. The answer is, that the writ is not defective; it only lacked authentication. The Clerk knew whether he issued it; and* if true, the Court possessed the means of giving it authentication as to the rest of the world, by stamping it with the seal of the Court. The Revised Statutes (c. 58, s. 1,J declare, that the Court, in which any action shall be pending, shall have power 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, at any time before judgment. This act is very broad, and we think covers this case. The judgment must be affirmed, and this opinion certified accordingly.-

Per Curiam, Ordered accordingly*