Brooks v. . Brooks

MxsbeimON, J. It is within the discretion of the court to-allow or disallow a proposed amendment of the pleadings, either before or on the trial of an action, and the exercise of such discretion is not roviewable in this court. Dobson v. Chambers, 78 N. C., 334; Henry v. Cannon, 86 N. C., 24; Wiggins v. McCoy, 87 N. C., 499; Gill v. Young, 88 N. C., 58. There are cases, however, where the amendment allowed may create a right in the adverse party to be allowed to make corresponding amendments or put in additional pleadings rendered necessary by the amendments first allowed. In such cases, if the court should disallow a proper application to amend, the action of the court would be reviewable here. Gill v. Young, supra. *145 Parties are bound by their pleadings, and declarations of fact made therein are evidence against them in any proper case. The court having refused to allow Z. T. Brooks and Larkin Brooks, defendants, to amend their answer by withdrawing so much thereof as raised the special defense, it remained as though they had not made the motion to amend, and they were bound by it for all the purposes of such a pleading, and the facts therein stated were competent as evidence against them, like declarations made by them on any occasion. As evidence, they were to be taken for what they were worth, subject to any proper explanation the parties making them could give. Nor could the defendants avoid the binding effect of their answers by an attempt to disclaim ore tenus that they claimed under David Brooks. They were bound by their answer as it appeared in the record according to its legal effect, and, besides, it was legal evidence against them. It was their folly to plead inconsistent defenses. The court, therefore, properly refused to instruct the jury that the defendants had disclaimed and abandoned all claims under David Brooks. Adams v. Utley, 87 N. C., 356; Guy v. Manuel, 89 N. C., 83. It very plainly appears that the principal question in contest on the trial was as to the mental capacity of Larkin Brooks, the elder. It was admitted by the counsel on both sides, in the presence of the court, that both the. plaintiffs and defendants claimed the land described in the complaint, and there was no controversy as to its location. Such admissions are binding upon the parties and their counsel, and when distinctly made, the court may justly enforce them in the progress of the trial. Besides, a witness testified that he knew and was well acquainted with the land mentiond; that part of it was called the “home place” and the other part the “Mayo tract.” Two of the defendants allege in their answer that they respectively purchased the land so designated from the ancestor of the plaintiffs. The court properly and justly refused to instruct the jury that there was no evidence as to the location of the land. There was evidence pointing out *146 the location, and besides, it appears from the conduct of the trial, the admissions and declarations of counsel, that there was no real contest about its location. If the defendants intended to make a contest as to that, they ought in common fairness to have said so • at all events, they should not have so demeaned themselves as to mislead the plaintiffs. The utmost fairness ought to be observed in all judicial proceedings, and especially in the conduct of trials. Apart from this case, it is a sad mistake to suppose that the practice of the law is a game of hazard, to be won by shift, subterfuge, deception and dissembling. On the contrary, the law requires of those who practice in its courts the strictest and most delicate observance of candor, truth, integrity, justice and fair dealing in the conduct of all legal proceedings, in and out of court. There could scarcely be a greater reproach to a well-bred lawyer, than to say of him truly that he had gained his case by trick and circumvention! The plaintiffs alleged in their complaint that they had title to the land in question, and the defendants having broadly denied this leading and material allegation, the burden of proving it rested on the plaintiffs. Both parties having introduced evidence, the rule of practice, settled by many decisions, gave the plaintiffs the right to close the argument to the jury. Churchill v. Lee, 77 N. C., 341; Clark’s Code, 210. How the argument of causes shall be conducted and the order of argument is a matter of practice, and is now1' regulated by a rule of practice in the superior courts, and rests in the discretion of the court. Its exercise of discretion is not reviewable in this court. See rule 6, 89 N. C., 609. There is no error in the ruling of the court below, and its judgment must be affirmed. No error. Affirmed.