Hicks v. . Nivens

Schenck, J. The appellants group 32 assignments of error. They mention in their brief only two exceptions. Those exceptions noted in the record, but not set out in their brief, are taken as abandoned. Rule 28, Rules of Practice in the Supreme Court, 200 N. C., 811 (831). The first exception mentioned in the appellants’ brief is the one numbered 25, and is to the court’s refusal to give a special instruction, orally requested by counsel, to the effect that if the jury “believed the evidence of the defendant, and especially the evidence of Chief Fesperman, they *47 would find that the plaintiffs were arrested and that the arrest was unlawful.” When a request for special instructions is not in writing the judge may disregard it. C. S., 565. The second exception mentioned in the appellants’ brief is the third exception, which was to the court’s overruling the plaintiffs’ demurrer to the evidence and allowing certain witnesses to testify relative to a robbery of the sheriff’s office in Monroe on the day on which the plaintiffs allege they were unlawfully arrested and imprisoned. If it be conceded that the demurrers should have been sustained and that the evidence should have been excluded had the answers remained as originally filed, the amendment to the answers rendered the evidence competent and the demurrers untenable. If this exception is meant to challenge the right of the court to allow the amendment, as the brief seems to indicate, it cannot be sustained. C. S., 547, provides that “The judge or court may, before and after judgment, in furtherance of justice, and on such terms as'may be proper, amend any pleading, ... 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. . . .” Soon after the adoption of the Code of Civil Procedure, Chief Justice Pearson, in referring to that portion thereof brought forward as C. S., 547, writes that it allowed “amendments on a scale so liberal that it may well be said 'anything may be amended at any time.’ ” Garrett v. Trotter, 65 N. C., 430. While there might have been little, if any, ground for debate as to whether the plaintiffs were actually arrested and imprisoned, there was an open question as to whether the defendant, when he arrested and imprisoned the plaintiffs, was acting in good faith and within the provisions of C. S., 4544, relative to when an officer may arrest without a warrant when he has reasonable grounds to believe that a felony has been committed and that any particular person is guilty thereof, and shall apprehend that said person may escape unless immediately arrested. The jury answered this question in favor of the defendant. The burden was upon the appellants to point out prejudicial error, This they have failed to do, and for that reason we find No error. Devin, J., took no part in the consideration or decision of this case.