Mcdowell County NcArchives Court.....Western NC Railroad, P. J. Sinclair Et Al V. 1892
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 25, 2011, 9:21 pm

Source: N C Reports
Written: 1892

P. J. Sinclair et al v. The Western North Carolina Railroad Company

Amendment - Pleadings - Retraxit - Appeal - The Code § 273

1. In an action by two tenants in common to have the value of lands required 
in construction of defendant's right-of-way assessed, and after the action had 
been pending for several years one of the plaintiffs entered a retraxit, and 
the Court allowed the other to amend his description of land so as to embrace 
his part still the subject of suit: Held, no error.

2. An order of amendment is not appealable.

This was a Motion to amend pleadings, heard before Graves, J., at the Spring 
Term, 1892, of McDowell Superior Court.

Defendant objected to Court allowing amendment and appealed.

Messrs. P. J. Sinclair and W. H. Malone for plaintiff
Messrs. D. Schenck and F. H. Busbee (by brief) and G. F. Bason for defendant

NC Supreme Court Justice Clark, J. - It appears that both complaint and answer 
had been withdrawn at previous terms and amended complaint and answer filed 
without exception. Those matters are therefore not before us. Upon such 
amended complaint and answer (as the pleadings had stood since 1883), this was 
an action by two tenants in common praying the appointment of commissioners to 
assess and value the lands required by the defendant for the right-of-way. At 
Spring Term, 1892, one of the plaintiffs entered, without exception, a 
retraxit which specified that it was in no way to affect the rights of the 
other plaintiff. Thereupon the Court permitted the remaining plaintiff to 
amend by letting the suit stand in the name of such plaintiff alone, also by 
reducing the description of the land (which it seems had been divided between 
the two original plaintiffs) to the land claimed by the remaining plaintiff, 
and omitting some recitals as to prior proceedings, which the motion alleged 
had been inserted in the complaint by mistake, and such prior proceedings had 
no reference to this tract. After hearing argument, the Court allowed the 
amendment upon payment of costs by the plaintiff. The defendant excepted and 
appealed.

The amendment restricting the description of the land to that claimed by the 
plaintiff remaining in the action, was eminently proper after the retraxit of 
the other plaintiff. The entry of the retraxit was on itself an amendment as 
to parties, and had not been excepted to. The omission of the reference in the 
complaint to other proceedings at another time before the Court, could not 
prejudice the defendant. These amendments did not change the nature of the 
action, and hence were within the discretion of the trial court, and not 
reviewable. The Code, § 273, and the numerous cases cited under that section 
in Clark's Code.

Besides, the leave to amend, if it had been reviewable, "neither terminated 
the action nor deprived the appellant of any substantial right which he might 
lose if the order was not reviewed before final judgment. Hence he should have 
had his exception noted in the record, that it might be reviewed on an appeal 
from the final judgment."

Appeal Dismissed

Additional Comments:
In the NC Supreme Court September Term 1892

File at: http://files.usgwarchives.net/nc/mcdowell/court/westernn2175gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 3.7 Kb