Hall v. . Thorburn , 61 N.C. 158 ( 1867 )

The affidavit in the case was framed in violation of that rule of pleading which prescribes that pleadings must specify and set forth accurately the Christian name and the surname of both parties: Com. Dig. Abatement E. 18, E. 19; Stephen Pl., 302. Charles Edward Thorburn, who owns the property that was attached here, has a right, upon replevying, to object to the process by which his property was brought into court. A writ served on "John" by the name of "James" is not cured by declaring against the party by his true name, and the court will set it aside. Doe v.Butcher, 3 T. R., 611; Greenlee v. Rothesay, 2 New. Rep., 132.

The court had no power to substitute a new affidavit, or to amend one already made. If there be no affidavit made, or none that sets forth the facts necessary to the jurisdiction of the court, the proceedings are coramnon judice. The court cannot confer jurisdiction upon itself by amendment; for necessarily jurisdiction must precede amendment. Our statute upon attachment makes no provision for amendment of affidavits in such cases, although this is done in other States. Here, the affidavit is a condition precedent; State Bank v. Hinton, 1 Dev., 485. An amendment would be to evade the statute, which no court can do; Phillipse v. Higden, Bus., 391. The distinction between the principle of the amendment in State Bank v.Hinton, and that of the one asked for here, is vital. The 1st section of the 3d chapter of the Rev. Code (160) enacts that "the court, in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such 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." The liberality with which the courts have allowed amendments under this provision is well known, and has been universally approved. It has been forcibly said, "that under it anything may be amended at any time." In the case of Lane v. Seaboard and Roanoke R. R. Co., 5 Jon., 26, it was held that where a person was arrested under a wrong name, the plaintiff might amend the process by inserting the right one. If that be so, surely an amendment ought to be allowed, whether the defendant has been proceeded against in a name which he used in making the very contract which was the ground of the suit, though it was not his name in full. Nor can it make any difference that the proceeding is by attachment instead of a regular suit. In the case of the State Bank v. Hinton, 1 Dev., 397, after the defendant had filed a plea in abatement, that the plaintiff had failed to give bond and make affidavit, and have them returned to court, to which the plaintiff demurred, he was permitted to withdraw his demurrer, and file, nunc protunc, a bond and affidavit which had been respectively given and made, and which the justice of the peace had failed to return. In this way the fatal defect of the nonreturn of the bond and affidavit was remedied, to the manifest furtherance of the justice of the case. In like manner the error (if error it were) of suing the defendant, Thorburn, in the name of C. E. Thorburn instead of Charles E. Thorburn, was properly permitted to be cured in the court below by the amendment which was there allowed.

The decision of the question of amendment in favor of the plaintiff precludes the necessity of saying anything about the plea in abatement for misnomer, which the defendant proposed to file. The interlocutory (161) order made in the Superior Court is affirmed.

PER CURIAM. Order affirmed.