Redmond v. . Mullenax

*510 Avery, J.: The Court submitted the three issues usually adopted in actions for possession of land, and there was no error in the refusal to allow the jury to pass upon the more specific inquiries suggested by the plaintiffs. The Court settled the issues in the exercise of a sound discretion, which, in that case, would be reviewable here only on condition that the party complaining could show from the record that the form of the issues was such as to preclude him from having presented to the jury some view of the law arising out of the evidence. Denmark v. Railroad, 107 N. C., 185; Boyer v. Teague, 106 N. C., 576; Emery v. Railroad, 102 N. C., 209; Bonds v. Smith, 106 N. C., 553. He has not attempted to show that he was deprived, by the ruling excepted to, of the opportunity to enlighten the jury upon the law applicable to the facts, and it is difficult to conceive how he could have done so. “An action is commenced as to each defendant when the summons is issued against him.” The Code, § 161. Though the paper purporting to be a summons may be informal in some respects, or even defective in failing to contain all that, according to the requirements of the statute, should appear in it, its informality and defects may be cured by amendment if there is evidence upon its face that it has emanated from the proper office and was intended to bring the defendants into Court to answer a complaint of the plaintiff. Henderson v. Graham, 84 N C., 496; Jackson v. McLain, 90 N. C., 64. If the paper bear internal evidence of its official origin, and of the purpose for which it was issued, it comes within the definition of original process, and the broad discretion with which Judges are clothed by section 273 of The Code may be freely exercised, subject only to'the restriction that the alteration shall not disturb or impair any intervening rights of third parties. Cheatham v. Cruise, 81 N. C., 343; Thomas v. Womack, 64 N. C., 657. But, unless there is something upon the face of the paper which stamps upon it unmistakably an official character, it is not a defective sum *511 mons, but no summons at all — no more than one of the usual ■printed blanks kept by the Clerks of the Courts. The seal of the Court is evidence throughout the State of the fact that •a paper to which it is attached emanates from the tribunal to which it belongs, and though the Clerk’s signature is the .prescribed evidence of genuineness as to all process to be served in the county in which his Court is held, yet, if he issue to such county a summons in the usual form, attested by his official seal, but not subscribed, and containing his name only as printed in the body of the paper, the Court has the power, after the defendant has entered an appearance, to amend by allowing the Clerk to sign his name. Henderson v. Graham, svpra. On the other hand, where a summons was issued to an adjacent county, signed by the Clerk of the Superior Court, but not attested by the seal, and served upon the defendant, it was held that, after an appearance by virtue of such service, the Court might, in its discretion, allow the seal to be attached, as it could also to final process upon which property had been sold in another county, and after it had been returned by the officer who sold. Clark v. Helen, 1 Ired., 421; Seawell v. Bank, 3 Dev., 279; Purcell v. McFarland, 1 Ired., 34. The cases cited mark the extreme limit to which this Court has gone in recognizing as valid and perfecting by amendment defective process. ' We cannot extend the discretion of the Court so as possibly to include a case where counsel obtains from the Clerk a form of summons, fills the blank in the body of it, and, after procuring the signatures of sureties on the undertaking endorsed thereon, places it in the hands of the Sheriff without giving to the Clerk the opportunity to pass upon the sufficiency of the security for costs, as the statute {The Code, § 211) requires him to do. The issuance of the summons in such a case is the act of the attorney — not of the Clerk — and the paper is void as process and incurable by amendment. Sheppard v. Love, 2 Dev., 148. Even between the parties, we cannot, by amend- *512 merit, give such a paper relation back to the time when, as an unsigned and unattested summons, it issued. The seal, though not required, or the signature, though not imparting authenticity in the county to which the summons issues, is evidence of the fact that the Clerk has approved the prosecution bond or permitted the issuance on a proper affidavit; and when the defendant waives the informality or irregularity by appearing, the curative power of amendment may be invoked, but not when there is nothing upon the face of the paper to give assurance that it received the sanction of the Clerk before it was delivered to the Sheriff to be served. There was no error in the ruling of the Judge that he had no authority to amend the summons. Here, however, the appearance was entered after the service of a set ond summons of later date and in proper form. The surveyor is required by the statute (The Code, §2769), upon receiving the entry and surveying its boundaries, to make two fair plats, one of which is to be attached to the grant when issued, and the other filed in the office of the Secretary of State. The original plat is thus made a part of the grant for the purpose of indicating the shape and location of the boundary, and is, of course, evidence, though not conclusive, to be submitted to the jury as to the true shape and location of the land. Even field notes of the original survey of the boundary line between North Carolina and Tennessee, when properly identified, were declared admissible as tending to show the location of that line, when called for in a grant. Dugger v. McKesson, 100 N. C., 9. Upon examining the record it does not appear that the plaintiffs excepted to the charge of the Court on the question of the location of the boundary lines, on the ground that it was not sufficiently specific. The abstract propositions set forth in the record are correct statements of the general principles applicable in such cases, and in the absence of such exception, it does not appear that the charge did not embody *513 more definite instructions directed to the facts in this case. The statement of the case on appeal does not purport to set forth the charge in full. We can only consider assignments of error made below and founded upon exceptions submitted in apt time. There is No Error.