Pendleton v. . Pendleton , 47 N.C. 135 ( 1855 )

A motion had been made in the county court of Pasquotank, at the June Term, 1854, upon due notice given, for leave to amend the record of that court so as to enter the following on the record of that court of the December session, 1840: "This cause coming on to be heard upon petition evidence, c., and it appearing to the satisfaction of the court that there were debts to a large amount due by the said Pendleton, (for some of which, judgments have been rendered and execution issued, against her land named in the petition,) which render a sale of the land named in the petition expedient and necessary: it is ordered, adjudged and decreed by the court that the petitioner, G. W. Pendleton, sell the land of his ward named in the petition, on the premises, at public sale, to the highest bidder, upon a credit of six months, with interest from the date: that he take bond with approved security from the purchaser, and make report to the next Term of this court."

Also a motion was made, on notice, that the commissioner be allowed to file his report of the sale which had been made of the land in question, as of the next term.

These two motions were allowed by the county court, and an appeal taken to the superior court, and upon consideration of the case before his Honor in that court, satisfactory proof being adduced from the memoranda of the county court, and from the testimony of the commissioner appointed to sell the land, that these amendments ought to be allowed, he gave judgment accordingly, from which the defendant appealed to this Court. It is settled by several decisions that the jurisdiction of this Court upon the subject of amendments in the court below, is confined to the question of power; and that when that court has the power, we cannot interfere with its discretion in the exercise of it. Phillipse v. Hidgon, Busb. 380; Campbell v. Barnhill, 1. Jones' Rep., 557. In the former of these cases, the subject is fully discussed, and the instances in which the Superior Court has the power to allow amendments are given, and distinguished from those where such power is denied it. "The subject," as it is said in that case, "may be divided into three classes: 1st. Every court has ample power to permit amendments in the process and pleadings of any suit pending before it; Quiett v. Boon, 5 Ired. 9." "2d. Every court of record has ample power, after a suit is determined, to amend its own record; that is, the journal or memorial of its own proceedings, kept by the court or its clerk, by inserting what has been omitted, or striking out what may have been erroneously inserted." "3d. The power of a court to allow amendments, after the determination of a suit, in the process or returns made to it by ministerial officers, is much more restricted and qualified; for the reason, among others, that the court is not presumed, in such cases, to act upon its own knowledge; but upon information derived from others. The case now under consideration falls within this class of amendments, and may be subdivided into three heads: 1st. Where the amendment is for the purpose of correcting a mere oversight of an officer in not making an entry, such as he ought to have made as a matter of course, and as a part of his duty according to law, the court has power to allow the amendment, notwithstanding third persons may be thereby affected."

It is unnecessary to state the second and third heads; under the last class, in which it was held that the court had no power to make amendments, because it is manifest that the amendments proposed to be made in the case now before us, fall under the second class and the first head of the third class as above set forth.

The first of the proposed amendments is nothing more than the drawing up and entering in proper form, the orders and decrees of the court upon the petition filed in the cause of which the clerk had only entered loose minutes.

The second is allowing the commissioner (who, for the purpose of selling the land was an officer of the court,) to make out and file a report of the sale which he ought to have done as a matter of course at the time, or which, if then done, has been since lost.

These amendments come clearly within the power of the court, as appears not only from the case of Phillipse v. Higdon, above cited; but also from the prior adjudications in Galloway v. McKeethan, 5 Ire. Rep. 12; Bradhurst v. Pearson, 10 Ire. Rep. 57; and Green v. Cole, 13 Ire. Rep. 425.

As the court has the power to make the amendments, and we have no right to interfere with its discretion in making them, the judgment must be affirmed.

PER CURIAM. Judgment affirmed.