Pridgen v. Anders, 52 N.C. 257, 7 Jones 257 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 257, 7 Jones 257

HANNAH E. PRIDGEN et al v. W. W. ANDERS et al.

Petitions to lay out roads, are within the meaning of the 1st section of the 3d chapter of the Revised Code, authorising the courts to amend pleadings, &c., in “ any action,” at any time before judgment.

Tms was a petition for a public road, heard before Caldwell, J., at Fall Term, 1859, of Bladen Superior Court.

This petition was originally filed in the County Court, and after reciting that a public road, commencing above Mount Zion church, where the new road turns out, and ending below Lake creek, where the Elizabeth road intersects said road, had been closed up by petition to Court, to the great inconvenience of the public, it prays the Court to “issue a writ to the sheriff, commanding him to summon a jury to re-open said road.” From the judgment of the County Court, granting this petition, the defendants appealed to the Superior Court, and at Spring- Term, 1859, the plaintiff's moved for leave to amend. This was granted, and time allowed until the next term for the purpose. At the succeeding term the amended petition was filed, praying the Court “ to issue a writ to the sheriff, commanding him to summon a jury to lay out a public road, commencing above Mount Zion church, where the new road turns out, and ending below lake creek, where the Elizabeth road intersects said road, as nearly as convenient as the old stage road runs.”

The defendant objected to the allowance of this amendment: 1st, because it should have been done at the last term ; and 2ndly, because it was not such an amendment as it was in the power of the petitioner to prescribe, viz., how the road should run.

The Court refused the motion, and defendants appealed to this Court.

Baker, for the plaintiffs.

E. G. Haywood, for the defendants.

Battle, J.

The very broad and extensive power given by the 3rd chapter of the Revised Code, to every court in the State, from the Supreme Court down to the lower tribunals, “ to amend any process, pleading or proceeding” in any action, “either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered thereon,” will certainly extend to the case of a petition to lay out and establish a public road. Why should it not ? There is certainly as much necessity for the exercise of the power in such a proceeding as in any other, and we are unable to discover, even the pretense of a reason, why an act, which it has been said, “ allows any thing to be amended at any time,” should be more restricted in a case like the present, than in any other process, pleading or proceeding, in any other kind of action; see Lane v. Seaboard and Roanoke Rail Road Company, 5 Jones’ Rep. 25, and all the cases there cited and commented upon.

Per Curiam,

Judgment affirmed.