Dickinson v. Lippitt, 27 N.C. 560, 5 Ired. 560 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 560, 5 Ired. 560

P. K. DICKINSON vs. WILLIAM H. LIPPITT.

The County Court has a right to permit a sheriff to amend his return on an execution to that Court by striking out a return of a levy and sale and returning milla, bona. If, upon an appeal from this decision, the Superior Court undertakes, without its appearing on their records that they had examined into the merits of the case, tq reverse this order, it must be presum- ■ ,ed to be done upon the ground that the County Court had no legal authority to make such an amendment; and, therefore, the Superior Court was in error, and ihdr decision must be reversed, and that of the County Court affirmed.

The case of Smith y. Daniel, 3 Murph. J.28, cited and approved.

Appeal from the Superior Court of Law of New Hanover county, at the Spring Term, 1845, his Honor Judge Pear - son, presiding.

This was a motion to permit the sheriff to amend his return on a writ of Fi. Fa. that he levied and sold certain property, and to substitute in lieu of said return a return that no property of the defendant could be found. It appeared that an execution in this case issued against the defendant, which was levied on certain goods as the property of the defendant, and these goods were subsequently claimed by one Benjamin •Tyler. The sheriff sold the goods, as. the property of the defendant, Lippitt, when one George W. Davis became the purchaser. Oil this execution, returnable to March Term, 1835, ofthe Court of Pleas and Quarter Sessions for the county of New Hanover, the sheriff made the following return: “Satisfied by sale of turpentine, agreeably to the annexed account of sales ; judgment and interest paid the plaintiff, M. Costin, and costs paid into office. C. B. Morriss, Sheriff.” The plaintiff gave notice to the defendant, twenty days or more before the March Term, 1843, of the said court, that he would move the court for leave, at that term, for the sheriff to amend his return, by striking out the return just mentioned, aud inserting; in lieu thereof, nunc pro tunc, “ no goods or chattels, lands or tenements of the defendant to be found in my county.” At June Term, 1843, of the said, court, the court directed the sheriff to amend accordingly ; from which order the defendant appealed. The cause came on to be heard upon this appeal, at the Spring Term, 1845, of the Superior Court of Law for New Hanover county, when the plaintiff moved that the appeal should be dismissed, upon the ground, that the order made by the County Court was not one, from which the defendant had a right to appeal. This motion was overruled, and the court proceeded to reverse the order of the County Court, and to refuse the application for leave to amend.— From this judgment the plaintiff appealed to the Supreme Court.

Strange for the plaintiff.

The question in this case is not so much, whether the Judge decided correctly, as whether lie had any jurisdiction of the matter by appeal. In Davidson v. Cowan, 1 Dev. 304, although this Court thought the Court below should not have allowed the amendment, and that it was an indiscreet exercise of discretion, yet held that they had no reversing power.— The case of the State v. Cherry and others, 2 Dev. 550, asserts the uneontrolable power of each Court over its own record. The same doctrine is even more boldly asserted in Bright v. Sugg, 4 Dev. 392. In Clark v. Hellen, 1 Ired. 421, the same doctrine is maintained and authority cited to support it, and among others, the Rev. Stat. ch. 58, sec. 1.— The cáse oíB. C. F. v. Williamson, 2 Ired. 147, proves noth-against it, for there the judgment of the Court below is not disturbed, The case of Green & others v. Deberry, 2 Ired. 344, renews the declaration of the position in Bright v. Sugg. And the late.case of Quieit adm’r of Stevelie v. Boon, 5 Ired. 9, is conclusive, and declares that the Court in which a suit is pending has the exclusive discretionary power of permitting amendments in the process and pleadings, and that no appeal lies from the exercise of such power ; and that case is substantially followed by Galloway v. McKethan, 5 Ired. 12.

The two cases cited by the defendant’s counsel if they were subject to no other remark, are either not applicable or are directly opposed to the cases referred to by me, and must yield to them, being more numerous, better considered, and of more recent date. But as to the case of Hunt v. Crowell, it was in the first place not the unanimous decision of the Court, and if my memory serves me right has been expressly doubted if not corrected by some more recent decision of this Court_ The case of B. C. F. v. Williamson, was, 1 think the record will shew, founded upon an express statement in the judgment of the County Court, that they doubted their right to make the amendment and not upon a refusal to exercise a discretion that they confessedly possessed. At any rate, all parties were anxious that this Court should express its opinion on the question, and no exception was taken to the jurisdiction of the Court by appeal.

But it is said, although the Courts may each have exclusively authority as to entries on their own records, processes and pleadings, yet they have no right to make amendments not consistent with truth. If there is any such exception as this, it destroys the rule, for it would be absurd and indecorous to suppose that any Court would deliberately assert a falsehood on its record. And if any other Court has the power of inquiring in any case, whether the record contains the truth with power to alter it if found otherwise, why, then, it has it in every case, and consequently has the power of altering every record, for whoever has the last say has the power of determining as to that matter, what is truth.' Besides, such an idea unsettles the established principle, that every record imports verity. The case of Austin v. Rodman, 1 Hawks 71, does not affect this question, for there the Court did not determine to alter a record, but to ascertain what was the record, and directed that to be expunged from the roll which was not a record. It had not been put there by order of the Court, and was of course no record of the Court.

Badger for the defendant.

Ruffin, C. J.

In the case of Smith v. Daniel, 3 Murph. 128, on a fieri facias against one person, the sheriff sold the slave of another, and brought the money into court, and af-terwards the owner of the slave recovered the value from the sheriff; and it was held, that the sheriff might amend his return, by striking out that which was made and inserting one of nulla bona. That is in point in the present case, to establish the power of the County Court to allow the amendment. With the propriety of the exercise of that power in particular cases, this court does not meddle; because, in general, it is a matter of discretion to allow or refuse the amendment, and, being a matter of discretion, the ground of allowing or refusing the amendment need not be set forth in the record. If, therefore, this were an appeal from a decision of the Superior Court, upon a motion originally made in that court, we should certainly not enter into it. But that is not the state of this case. This motion was made in the County Court and granted ; and from the order as it stood, simply and without any statement of facts, an appeal was taken to the Superior Court, ' where the order was reversed. If it appeared, that, in the Superior Court, evidence' was gone into, for the purpose of shewing that the amendment ought or ought not to have been made, we should have felt bound by the opinion of his Honor, founded, as it would be, partly upon matter of fact. But nothing of that kind appears. After stating a refusal of the appellee’s motion to dismiss the appeal, the record states, that “ the court proceeded to reverse the order of the County Court, and refuse the application to amend,” This imports, not that the decision was on any merits made known by proof to the ""Superior Court, more than they are to this court; but merely that the order of the County Court was reversed on its face, because ^ was erroneous in point of law, either because the County Court could not, under any circumstances, make the order, or because the grounds of the order ought to have been stated in it. In that we think there was error ; and viewing the case in that light, the error is one of law, and therefore cognizable by this court. We can readily conceive, that the amendment was very properly allowed. If, for example, the plaintiff in the execution, or the sheriff, was sued for the turpentine by some other person as owner, and after bona fide defence was compelled to pay for it, the defendant ought still to pay the debt, as it would thus appear, that he never had paid it. But he could not be compelled, while the original re-* turn stood as a bar to any proceeding on the judgment. Therefore it ought to be put out of the way, so that a scire fa-cias would lie on the judgment, especially, as it could not prejudice the defendant, if the turpentine really was his, inasmuch as the return would not conclude him, but he might still plead the seizure of his goods of value sufficient, as a satisfaction. It is to be observed, that there is no contest between the plaintiff and the sheriff, but only between the defendant and those persons. Now, we do not know that the facts were, as before supposed; but we presume they must have been of that kind, as we can imagine nothing else that could make the amendment desirable. It is sufficient, however, if there can be a case, in which the County Court ought to have allowed the motion; for, as far as we can see, the Superior Court reversed the decision of the County Court, without reference to any merits made to appear to the Superior Court, but for a supposed error apparent in the record. In other words, the power of the County Court to allow the amendment must have been denied, contrary to the case of Smith v. Daniel.

The judgment of the Superior Court,must, therefore be reversed-; and this court, proceeding to give such judgment as the Superior Court ought to have given, doth affirm the order of the County Court, and direct the same to be certified to the Superior Court, in order that a procedendo may there be issued to the County Court to allow of the amendment, according as the same was ordered in the County Court.

Pek Curiam, Ordered accordingly.