Clawson v. . Wolfe

ByNüm, J. There is error. It is provided in the Rev. •Code, ch. 3, §§ 5-6, that where a judgment shall have been -reudered in any case upon default, nil (licit, &e., it shall not be reversed, impaired or in any mauner affected, for any defects in the process or pleadings, to wit; for an}*- mistake in the name of any party or person, &c., where the correct name ■shall have been once rightly alleged in any part of the pleadings or proceedings. And that such omissions, defects and variances, not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied !and amended by the Court where the judgment shall be given, or by the Court 'in which the judgment shall be removed by appeal. This statute covers this case. The name of the defendant was correctly set forth in the title of the summons and in the ■declaration which was upon a note signed by"the defendant ■and which he does not deny. The only defect is contained in the body of the summons where he is named J. 0. Wolfe, when it should have been W. 0. Wolfe. We think it sufficiently appears, without the aid of the proposed affidavit, that W. 0. Wolfe -was actually served with process and was not in the slightest degree misled. The officer returns upon the process that it was “served” and the defendant does not •deny that it was served upon him, but we think by fair inference admits it, when in his notice of appeal and as one <of the grounds of it, he says “that judgment was rendered without any service of proper summons upon the defendant W. 0. Wolfe. ” If no summons.had been served upon him *102 it was incorrect to insert the word “ proper ” which having been inserted, must have its proper effect. The title of the summons was against the defendant b,y his proper name, the declaration of the cause of action was-against him by his proper name, the judgment also correctly set forth • his name, and finally the summons was served upon him, containing such a description of the cause of action that he could not have been reasonably misled by what' he must have known was a clerical mistake as to á single" letter. It was therefore the duty of the Court under the-provisions of the Rev. Code, before cited, and C. C. P. §§ 128, 135, to make the amendment and proceed with the trial. Gibbs v. Fuller, 66 N. C. 116. We place our decision upon ther proper construction of our statutes and therefore we do not consider the English authorities cited by the defendant’s-counsel as applicable. We are also of opinion that W. 0. Wolfe having admitted-himself to be the defendant by .praying an appeal and defending the action for seven terms of the Court, without having specified the grounds of his motion to set aside the judgment and dismiss the action, or moved in the matteiy thereby waived the irregularity complained of. Per Curiam. Venire de novo.-