Barbee v. . Cannady

Clarkson, J. The defendant’s first assignment of error is as follows : “The action of his Honor in permitting the present plaintiffs to be substituted as parties, after the trial had commenced and the jury had been selected.” The action was instituted originally by Green Barbee to set aside a deed. Barbee died and his executor was then made a party plaintiff. As far as can be ascertained from the record, the will of Green Barbee had no bearing on the land in controversy. In Harris v. Bryant, 83 N. C., p. 571, it is held the executor and not the heirs, represents the estate where land is directed by will to be sold and converted into money, and the latter are not necessary parties to a suit concerning the disposition of and charges on such estate. In Speed v. Perry, 167 N. C., p. 129, it is held: “The real estate did not vest in them, unless there is a provision in the will to that effect, which is not yet shown. This Court held in Floyd v. Herring, 64 N. C., 409, following Ferebee v. Proctor, 19 N. C., 439, that ‘a personal representative has no control of the freehold estate of the deceased, unless it is vested in him by a will, or where there is a deficiency of personal assets and he obtains a license to sell real estate for the payment of debts. The control derived from a will may be either a naked power of sale or a. power coupled with an interest. The heir of the testator is not divested of the estate which the law casts upon him, by any power or trust, until it is *533 executed.’ See, also, Womble v. George, 64 N. C., 759; Fike v. Green, ibid., 665; Beam v. Jennings, 89 N. C., 451; Holton v. Jones, 133 N. C., at p. 401; Munds v. Cassidey, 98 N. C., 558; Perkins v. Presnell, 100 N. C., 220; Gay v. Grant, 101 N. C., 219.” When Green Barbee died, under tbe facts in the present case, the real estate did not vest in the executor, but in the heirs at law of Green Barbee and they were the “real party in interest.” C. S., 446, in part, is as follows: “Every action must be prosecuted in the name of the real party in interest, except as .otherwise provided”; etc. C. S., 547, is as follows: “The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. When a proceeding taken by a party fails to conform to law in any respect, the trial judge may permit an amendment of the proceeding so as to make it conformable thereto.” C. S., 460, in part, is as follows: “The Court either between the terms, or at a regular term, according to the nature of the controversy, may determine any controversy before it, when it can be done without prejudice to the rights of others, but when a complete determination of the controversy cannot be made without the presence of other parties, the court must cause them to be brought in. When in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in its subject-matter, applies to the court to be made a party, it may order him to be brought in by the proper amendment,” etc. The language of the statute, C. S., 547, is that an amendment cannot “change substantially the claim or defense.” An amendment cannot change the nature of the action or defense without consent, nor essentially change the original cause of action. In the case at bar, the amendment did not change substantially the claim or change the nature of the action, or essentially change the original cause of action. On the death of Green Barbee the action did not abate; he had filed the complaint and died during the pendency of the action, and when his heirs at law were made parties they adopted the complaint already filed. C. S., 461, is as follows: “1. No action abates by the death; marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survives, or continues. In case of death, except in suits for penalties and for damages merely vindictive, or in case of marriage or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, *534 may allow the action to be continued, by, or against, Ms representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action,” etc. After death of party or transfer of interest in an action for land, there is no abatement. Burnett v. Lyman, 141 N. C., 500; Ins. Co. v. R. R., 179 N. C., 255; Redmon v. Ins. Co., 184 N. C., 481. In Joyner v. Fiber Co., 178 N. C., 635, it was held: “The court had the right, and in fact it was its duty, to require all the parties to be brought in whose' rights would be affected by the proceeding. Rev., 414 (C. S., 460). The trial judge found as a fact that said company was a proper and necessary party after the alleged compromise, and his action was not reviewable. Aiken v. Mfg. Co., 141 N. C., 339. The judgment 'may determine the ultimate rights of the parties on each side between themselves.’ Rev., 563 (C. S., 602). An order making additional parties is not appealable. Bennett v. Shelton, 117 N. C., 103; Emry v. Parker, 111 N. C., 261; Lane v. Richardson, 101 N. C., 181; and would have been premature, Etchison v. McGuire, 147 N. C., 389; Bernard v. Shemwell, 139 N. C., 447; Tillery v. Candler, 118 N. C., 889.” Bynum v. Bynum, 179 N. C., 14. 20 R. C. L., p. 698, says: “The general rule that an amendment may be made at any time in the discretion of the court, if the claim or defense is not thereby changed, applies generally to the substitution of parties. . . . 'No amendment of any pleading nor the filing of any additional pleading is required when the pleadings already filed state the cause of action or defense for or against the party substituted. And, as a general rule, the substituted party takes up the prosecution or defense at the point where the original party left it, assuming the burdens as well as receiving the benefits.” "We think the case cited by defendant, Merrill v. Merrill, 92 N. C., 665, not inconsistent with the view here taken: “The court has no authority to convert a pending action that cannot be maintained, into a new one, by admitting a new party plaintiff solely interested, and allowing him to assign a new and different cause of action, if the defendant shall object. The statute allowing necessary additional parties to be made in an action does not contemplate such an exercise of power. There is neither principle, nor statute, nor practice that allows such a course of procedure; it would certainly lead to endless complications, confusion and injustice. An action, separate and distinct from a pending one, must be begun according to the ordinary course of .procedure.” Cooper v. R. R., 165 N. C., p. 578. *535 The second assignment of error: “The action of his Honor in permitting introduction of deposition of Green Barbee.” On the death of Green Barbee, the action did not abate. There was no new action by making his heirs at law parties. The record shows “that on account of the ill health of the said Green Barbee, his deposition de bene esse was taken after due notice to the defendants in the original action of Green Barbee v. "W. P. Oannady on 22 August, 1923, before James R. Stone, commissioner.” The deposition was regularly taken in accordance with C. S., 1821, which is as follows: “Every deposition taken and returned in the manner provided by law may be read on the trial of the action or proceeding, or before any referee, in the following cases, and not otherwise: . . . (4) If the witness is so old, sick or infirm as to be unable to attend court.” Cooper v. R. R., 170 N. C., p. 493. This assignment of error cannot be sustained. Under our civil procedure, and the decisions of this Court, the object to be obtained is to try cases on their merits and see that substantial justice is done. The limit to amendments is that they do not change substantially the claim or defense or assign a new and different cause of action. It was earnestly argued by the able counsel for defendant that injustice has been done defendant in allowing the amendment making the heirs of Green Barbee parties to the action after the trial had commenced and the jury selected and empaneled. The action did not abate, and allowing the amendment was a matter in the sound discretion of the court below. The court was the impartial arbiter in the controversy with no bias in favor of either side, but to see that exact justice was done. The fact that the court signed the order after the trial nunc pro tunc, having previously allowed the amendment, was in the sound discretion of the court. From the record, there was no error in law. No error.