Britt v. Patterson, 32 N.C. 390, 10 Ired. 390 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 390, 10 Ired. 390

JOHN BRITT vs. JOHN PATTERSON.

An appeal will lie to the Superior Court from an order of the County Court» allowing an amendment; and in such a case the Superior Court has the same right of discretion, in regard to the amendment, which the County Court had — the order of the County Court being annulled by the appeal.

Appeal from the Superior Court of Law of Greene County, at the Fall Term 1849, his Honor Judge Manly presiding.

The plaintiff took out an attachment against the defendant’s estate for $450, directed to any constable, and returnable before,a justice of the peace, and it was levied and returned to the next County Court. At that term the plaintiff moved the Court to amend the proceedings by directing the writ to the sheriff, and making it returnable to that term of the Court, and allowing the return on it to be changed from that of a constable to one by the sheriff The motion was opposed by Patterson ; and he, on his part, moved the Court to quash the return and the writ. The Court refused the motion of Patterson, and allowed that of Britt; and the former prayed and was allowed an appeal, but was unable at the time to give the security required by the Court. Afterwards he took/ the case up to the Superior Court by certiorari, am! (hers both parties renewed respectively the. motions they -had. made in the County Court, and his Honor reversed the decisions, and held that the motion of the plaintiff, Britt, ought to be disallowed, and that of Patterson allowed, and ordered accordingly ; and then Britt appealed to this Court. On the part of Britt his own affidavit was offered to establish the justice of the debt, and that of the Justice, who issued the attachment, slating that the proceedings were put into the form, in which they were, through his ignorance and mistake of the law.

J. II. Bryan and II us led, for the plaintiff.

Biggs, for the defendant.

Ruffin, C. J.

It is insisted on the part of Britt, that the decision of the County Court is conclusive, as it belongs to each Court to make amendments, as a matter of discretion, not the subject of revision. That is true in respect of appeals to this Court from such orders in the Superior Court; but it never has been so held as between the County and Superior Court. The distinction is this; that, as a Court of error, which is the character of this Court, it is not competent to it to exercise any discretion, which is necessarily more or less dependent upon evidence and facts, but only to determine whether, in point of law, a decision of the Court below be erroneous or not; whereas, upon appeal from the County to the Superior Court from an order of amendment, the latter Court has all the discretion the former had, and can receive new evidence, and determine upon the propriety" of the amendment, according to the case as made to appear to the Superior Court. It was therefore proper that his Honor should consider of the several motions of the parties. Indeed, it is seen, by what was done in this case, that the decision of the County Court was annulled by the appeal from it, and then Britt was under a necessity to renew his motion in the Superior Court. It follows, of course, that the Court was obliged to consider of its propriety, and might therefore refuse it. Having done so, the decision must stand, even if we, here, thought it ah indiscreet exercise of power: as it has often been decided, that the Supreme Court cannot interpose in such cases. We must say, however, that, as far as an opinion can be formed from the face of the record and the facts disclosed in the affidavits, onr judgment would entirely concur with that of his Honor, if it were our province to decide the point. The course of the creditor was a gross abuse of the process of attachment, in the first instance ; and the attempt to sustain it in this manner was an equally gross abuse of the power of amendment, exercising it, not to advance justice by a fair trial, but to encourage short cuts to stifle defence.

■Per Curiam.

Orders affirmed.