Simpson v. Simpson, 64 N.C. 427 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 427

ROBERT SIMPSON v. SARAH SIMPSON.

Where process in the body of it purports to be original, ail endorsement of “alias ” or “pluries ” by the Clerk, will not change its character

A court has no power to amend process returned at a former term, without giving notice to persons whose rights have previously accrued.

(Bank of Cape Fear v. Williamson, 2 Ire. 147; Phillipse v. Higdon, Bus. 380, approved.)

MOTION to rescind a previous order, made before Buxton, ,7., at. Spring Term 1870 of Union Court.

The order in question had been made in the Couuty Court of Union at October Term 1865, and had been granted at the motion of the defendant without notice to the plaintiff j its effect was to amend certain successive executions which had issued in a State case theretofore constituted in that Court against one John W. Simpson, by changing them from originals into “alias” and “pluries” executions. These executions had been issued from time to time upon a judgment rendered at April Term 1853, and terminated with one returned to January Term .1857; a sale of land having been made under the last, January 5th, 1857, (under a levy dated Nov. 10th, 1856,) to one Helms, under whom the defendant claimed. The plaintiff claimed the land under a deed from John W. Simpson, executed Nov. 23d, 1853. On the face of these executions they were all originals, but the second in the series was endorsed by the Clerk “alias Ei. Ea.,” and those succeeding, “pluries Ei. Ea.”

ITis Honor made a rule upon the defendant to show cause why the former order should not be rescinded, and, upon hearing it, made such rule absolute, and the defendant .appealed.

Wilson, for the appellant.

Battle & Sons, contra.

1. An amendment is not proper if it affect the rights of third persons: Bank of Gape Fea/r v. Williamson, 2 Ire. 147; Phillipse v. Higdon, Bus. 380.

2. The endorsement is no part of the record: State v. JRoherts, 2D. & B. 540; State v. Barnes, 7 Jon. 20. See also Molver v. Bitter, Winst. Eq. 56.

Settle, J.

The endorsement of the words “ alias ” and “ pluries,” formed no part of the record, and could not have the effect of changing their tenor from originals to alias and pluries executions. This was conceded by the defendant when she sought to have them amended by an order of the County Court. However extensive the powers of the Courts may be in respect to amendments, .they certainly have not the power to allow them without notice, when they change in substance the process from what it was when issued, if the rights of third persons be thereby affected: Bank of Cape Fear v. Williamson, 2 Ire. 147; Phillipse v. Higdon, Bus. 380.

The case before us is a strong illustration of the injustice ■of such a course. An amendment is allowed in 1864 without notice to the party interested, which in effect reached back and disturbed a title acquired in 1853. The record of the County Oourt having been transferred to the Superior ■Court, his Honor was correct in vacating the order and the amendments made in pursuance thereof by the County Court in 1864.

Pee Curiam. Affirmed.