McNair v. . Comrs. of Buncombe County , 93 N.C. 364 ( 1885 )

In the original complaint stating the grievances of the plaintiff, in that by the hasty adjournment, the application of the voters of Black Mountain district, for relief from the operation of the statute, was not heard and considered, the redress demanded was an injunction against carrying it into effect in that township, and that the commissioners and justices should again meet in joint convention, in order that such application might still be made. The injunction was refused, and thereupon, with no amendment, the action is converted into a suit for a mandamus nisi in form at first, and made absolute afterwards. This is not an amendment but a new and altogether different and independent proceeding, which cannot be upheld without subverting fundamental principles of pleading and practice, and introducing inextricable difficulties in the way of pursuing a remedy for a recovery. This wide departure from established rules, which are framed to eliminate the elements of controversy upon the allegations made and controverted by the contesting parties, cannot be permitted if we are to have and preserve any definite principles to guide in the conduct and defense of actions. Merrill v. Merrill, 92 N.C. 657.

The conversion of the action into one of a nature wholly different, and the proceeding under it, without any modification in the form of the complaint, and in our opinion even with such modification, is an irregularity that finds no sanction in the power to amend and perfect, and is a just subject of complaint by the appellants.

There is error, and the action of the court must be reversed in so far as it undertakes to make a wholly different case from that presented in the pleadings, and the cause will proceed from the point at which this departure took place.

Let this be certified.

Error. Reserved.

Cited: Ely v. Early, 94 N.C. 4; Clendenin v. Turner, 96 N.C. 422;Cooper v. R. R., 165 N.C. 581; Supreme Council v. Grand Lodge, 166 N.C. 222.

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