Armstrong v. Wright, 8 N.C. 93, 1 Hawks 93 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 93, 1 Hawks 93

Armstrong v. Wright.

From Duplin.

The refusal of an inferior Court to allow pleadings to be amended, or to continue a cause, or any other exercise of a mere power of discretion, held not to be an error, for which the judgment will be reversed on appeal or writ of error.

pi or is it an error to refuse a new trial, which is moved for on the ground that the verdict is ugainst evidence. — Ip Note.]

Debt on bond. Plea, non est faciurn and issue. After the cause luid been pending sometime and stood for trial, the Defendant moved tiie Court on auidavits to amend by adding the- pleas of infancy and the statute against gaming; which was refused, and a verdict taken, and judgment rendered against him on the pleadings as they then stood. The Defendant appealed to this Court, upon the ground that the Court erred in not allowing the amendment.

The cause was argued at some length by Henry, for the

appellant, and Mordecai, for the appellee,

on the power of the Court below to admit the pleas, and the propriety of it: but as the opinion of the Court did not turn on it, their arguments are omitted.

Mordecai, however, objected that amendments were matters of discretion, and that appeals could not be taken for a refusal of them.

HbitdersoN, Judge,

delivered the opinion of the Court:

I think this Court cannot look into the question arising upon the motion to amend, for two reasons: the first is, that it is a question of discretion; and in all cases of discretion, as much is confided to the inferior Court as to the Superior Court. The second reason is, that the very act of vesting a discretionary power proves, that the subject matter depends on such a variety of circumstances, where each shade may make a difference, that it is impos-siblc to prescribe any fixed rules or law's by which the su|)jCCj. can [)C ¡•(.«•ij]ated. And although it be said that a •> o a sound discretion means a legal discretion, yet, when we as[t v. iiat the lega! discretion is, we are as much at a loss as we were before the definition, to declare the rules or laws by which the discretion .shall be regulated. To prescribe fixed rules for discretion, is at once to destroy it.

This opinion is very much supported by the practice in [England. 1 do not know a single case where any decision, depending on discretionary power, has been the subject of a writ of error $ and I think that the power of this Court to correct errors in law, extends not to those errors which may be committed in the exercise of a discretion, but only io those where the fixed and certain rules, emphatically called laws, are mistaken.

To entertain this question, would compel us to take notice of questions on motions to continue, and all other collateral questions arising in the progress of a cause: a full view of which can never be taken from the abstract facts put down upon the record. Besides, the delay and the inconvenience of unravelling and undoing all that had been once done hi the Court below, after the decision of the point complained of, would overwhelm any good aid-sing from the interference' of this Court. We are not un-apprised that the Court of Appeals of Virginia entertain jurisdiction ci en in cases of continuances. There may possibly be something in the constitution of their Courts which warrants it ¿ but there is nothing in ours.

Without looking into the motion for the amendment, we think that the judgment of the Superior Court must be affirmed.