Rosenbacher v. . Martin

WalKER, J., after stating tbe case: Tbe course pursued was quite-irregular practice. Tbe defendant bad gone through tbe justice’s court pleading to and trying upon tbe merits. His answer waived, or, as-is sometimes said, overruled, tbe demurrer. Ransom v. McClees, 64 N. C., 17; Finch v. Baskerville, 85 N. C., 205; Moseley v. Johnson, 144 N. C., 257. The defect of parties, if there is one, appeared upon tbe face of tbe record, and tbe objection should have been taken by demurrer in tbe beginning. Eevisal, sec. 474 (4); Davidson v. Elms, 67 N. C., 228; Machine Co. v. Lumber Co., 109 N. C., 576. A defendant cannot demur and answer at tbe same time. By answering to the-merits all defects are waived, except an objection to tbe jurisdiction of' tbe court or to tbe defectiveness, of the cause of action (Eevisal, sec. 478), which objection can be made at any stage of tbe case. Tbe judge cited Heath v. Morgan, 117 N. C., 504, as depriving him of the-discretion to allow an amendment, which be would have doné bad be possessed tbe power. In that case, tbe court below, bad overruled the-demurrer, there being no answer, and this Court sustained it, but without ordering tbe action to be dismissed and without, also, any intimation that tbe trial court could not allow an amendment in its discretion, which it clearly bad tbe right to do, as we will presently show,, if it would not change substantially tbe nature of the action, which would not be done here by tbe proposed amendment. We will advert to one expression in that case before parting with it. Tbe Court saidr “Tbe cases of Wall v. Jarrott, 25 N. C., 42, and Lash v. Arnold, 53 N. C., 206, while they sustain judgments taken in tbe firm name, both admit that if tbe objection bad been to tbe ‘writ’ it would have been good. This was evidently tbe rule under tbe old practice. And while tbe Code has made many changes in tbe forms of actions and mode of procedure, we do not think it has made any change in this respect.” Tbe Court evidently overlooked Code,-sec. 273, now Eevisal, sec. 507,. to which we will refer again more at large. Tbe case of Palin v. Small, 63 N. C., 484, which is cited by tbe Court in Heath v. Morgan, supra, was an action of assumpsit, under tbe old and antiquated system of' pleading which has been supplanted by tbe present more liberal system of pleading and procedure, and, therefore, it does not apply now, nor did it decide this point. It held only that- there was no material variance between tbe writ or process and tbe declaration. Tbe writ was in tbe name of three persons trading under a certain firm name, as plaintiffs, while tbe declaration ran in tbe name of tbe individuals themselves without tbe affix. It was held that thé latter was mere surplusage, and, being eliminated, there was an exact correspondeince between writ *238 and declaration. That is not tbis case, nor was it the case in Heath v. Morgan. We do deny tbe power of the judge to allow, in his discretion, a withdrawal of the answer in a proper ease (Finch v. Baskerville, supra), but the answer in this case was not withdrawn. The judge had ample power to permit an amendment' of the process and pleadings. There was only a misnomer, or misdescription of the plaintiff, which could be amended without changing the nature of the action. This power is found in Eevisal, sec. 507, which 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; or by correcting a mistake in the name of a party, or a mistake in any other respect; or 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.” This language is plain and unmistakable in its meaning and broad enough to include this case. The object of the present procedure is to try cases on their merits and not on technicalities and refined distinctions of the old system of special pleading, under which the victory depended to much upon the skill of the pleader, rather than upon the merits of the successful party’s case. Our system is far more liberal, and seeks, first of all things, to try each case upon its facts and without so much regard to form. Its main purpose is to avoid miscarriages of justice by mere slips in pleadings, and, therefore, it requires that pleadings be construed sensibly, “with a view to substantial justice between the parties” (Ee-visal, sec. 495) ; that “in every stage of the action” the court shall disregard any error or defect in pleadings or proceedings not affecting the substantial rights of the adverse party (Eevisal, sec. 509) ; and then there are other provisions equally as liberal, and especially with regard to defects in the names of parties. Eevisal, secs. 510 and 507. It would be a great reproach to the administration of law if so slight a departure from the name should result in the defeat of justice. The court should have rejected the demurrer, allowed the amendment, if one at that stage of the case was needful, and proceeded to try the case upon its actual merits, and it erred in not doing so. Error.