Swain v. . Burden , 124 N.C. 16 ( 1899 )

This is an action against the defendant as sheriff for the penalty of $500 for a false return, as provided in The Code, sec. 2079. After the action was begun, the defendant, on affidavits, moved the court to be allowed to amend his return so as to speak the truth. The motion was allowed and the plaintiff appealed.

The only matter for this Court is the power of the Superior Court judge to allow the amendment to be made. The power of the judges to allow amendments in process, etc., is broad, both by statute and the inherent power of the court. The experience of every lawyer demonstrates the propriety and policy of the exercise of such power in many cases. Without it, justice would often suffer and the rights of litigants (18) would be sacrificed. The necessity of such power grows out of business transactions of men and their liability to make mistakes and oversights. The public good and private interest of the people justify and require the lodgment of such power in the court, and experience has so demonstrated.

All will agree that in meritorious cases the power should be exercised. We must assume that the power will be used only in proper cases, and in all others it will be withheld. Who can better discriminate than the presiding judge? We think from the authorities and the reason of the matter, that the discretionary power must always be present with the presiding judge. Judges, like all other citizens, are amenable for any abuse of their powers or misconduct, and we like to assume that their duties will be performed faithfully and honestly.

This question has been so often under a review, as appears from the citations under section 2079 of The Code, that we find nothing new to add to what has been said. In the recent case of Stealman v. Greenwood,113 N.C. 355, and the cases noted therein, the question is well considered and decided.

AFFIRMED.

Cited: Swain v. Phelps, 125 N.C. 44; S. v. Lewis, 177 N.C. 558.

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