Cook v. New York Corundum Co.

MacRaic, J.: As the plaintiff has admitted the first affidavit to have been insufficient it will not bo necessary for ns to examine it. His Honor had full power to permit the amendment, as lias often been held by this Court (Sheldon v. Kivett, 101 N. C., 408), and there was no right of appeal from the order allowing the amendment. The appeal is from the refusal of his Honor to vacate the warrant of attachment. The Court having the power to allow the amendment, its only purpose could have been to *619 cure any irregularity which might have existed in the proceedings upon which the warrant of attachment was based. It could not be contended that the defect alleged was such as to render the attachment proceedings void. The power of amendment could not be exercised for the giving of life to that which was void, but it is in furtherance of justice for the curing of defects which might between the parties have invalidated the warrant, but which could not be attacked in a collateral proceeding. Such amendments, when made, have relation back to the beginning of the proceeding sought to be amended. This principle being so well understood, no rights can be acquired by third parties by reason of subsequent attachments based upon the irregularity in question. The lien in this case of the first warrant had attached and liad not been divested. A sale of the property under it and a proper conveyance would have passed the title. A refusal of his Honor to permit the amendment, if the affidavit were insufficient, would have been followed buy an order vacating the attachment, and thereupon the second warrant and lev}r would have constituted the first lien. It is unnecessary to cite authorities to the effect that that which is simply irregular is not void. 'If there was a defect in the affidavit it was cured by the amendment, which his Honor had the right to permit. So the plaintiff’s lien had attached when the proceedings were begun by Homans, the second attaching creditor, and no rights acquired by the issue or levy of the second warrant have affected it. No vested rights had been acquired by the creditor Homans by reason of his levy which have been divested by the amendment of plaintiff’s affidavit. Third parties are permitted to intervene not to defend the main action between plaintiff and defendant, but to assert their superior title to the property in controversy. *620 They could not be heard to object to the irregularity of the attachment proceedings, that being a matter between the parties to the main action. Blair v. Paryear, 87 N. C., 101. Affirmed.