Crump v. Eckerd's, Inc., 241 N.C. 489 (1955)

Feb. 4, 1955 · Supreme Court of North Carolina
241 N.C. 489
HORACE F. CRUMP v. ECKERD'S, INC.

HORACE F. CRUMP v. ECKERD’S, INC.

(Filed 4 February, 1955.)

Pleadings § 22: Process § 14—

The discretionary denial by the trial court of a motion to amend tbe pleadings and process is not reviewable in the absence of manifest abuse of discretion.

Appeal by plaintiff from Patton, Special J., March Extra Civil Term 1954 Of MECKLENBURG.

Motion by the plaintiff that the court “exercise its discretion by permitting and ordering the process and pleadings in this cause to be amended by striking out the words, ‘Eckerd’s, Incorporated,’ wherever they may appear, and inserting in lieu thereof the words ‘Eckerd Drugs, Incorporated,’ a Delaware corporation; and that the said Eekerd Drugs, *490Incorporated, be allowed thirty days within which to answer or otherwise plead from date of service of said process.”

The trial court, after hearing the evidence, made findings of fact and conclusions of law and entered the following order: “Upon the foregoing FINDINGS of Fact and Concdttsions of Law, and in the discretion of the Court, it is OedeRed that plaintiff’s said motion be, and the same is hereby denied.”

The plaintiff appealed assigning error.

Hugh M. McAulay and Welling & Welling for Plaintiff, Appellant.

Kennedy, Kennedy & Hiclcman for Defendant, Appellee.

Parker, J.

Eckerd’s, Inc., is a Forth Carolina corporation. Eckérd Drugs, Inc., is a Delaware corporation.

G-.S. 1-163 is captioned “Amendments in Discretion of Court.” The material part of this statute reads: “The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, ... by correcting a mistake in the name of a party . . .”

It is not necessary for us to decide whether the plaintiff by his motion is seeking to correct a mistake in the name of the defendant, or is seeking to substitute a different corporation for the present defendant without service of process. The trial court in its discretion denied plaintiff’s motion. No manifest abuse of discretion is made to appear. The court’s ruling is not subject to review. Gordon v. Gas Co., 178 N.C. 435, 100 S.E. 878; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Byers v. Byers, 223 N.C. 85, 25 S.E. 2d 466; Pharr v. Pharr, 223 N.C. 115, 25 S.E. 2d 471.

The judgment of the lower court is

Affirmed.