Peoples National Bank v. McArthur

Smith, O. J. The undertaking is executed by W. D. Smith and J. M. Smith (who constitute the firm) and E. J. Hardin, and is so drawn as to apply to the appellants as such whether a part or all of them appealed ; and with the explanatory amendment, is discharged by the plaintiff’s failure to obtain judgment against the principals in the superior court. It is not denied that the court possesses no power to alter the provisions of the contract or relax any one of its obligations; and while abstaining from this, it is not less a duty to make the record a truthful narrative of what occurred and to correct an inadvertent error. The duty is imperative, and it would be most unjust by a false speaking of the record to enlarge the liability into which, with the understanding of all the parties, the surety has entered, because of an erroneous recital in the statement of facts by the justice who first tried the cause. The only question then is as to the right of the judge to make the amendment, and of this there can be no doubt, as a few references will be sufficient to show. The general doctrine with its limitations is stated in Phillipse v. Higdon, Busb. 380, and Ashe v. Streator, 8 Jones, 256. A summons returnable before the clerk may be made returnable before the court in term time and thus give juris *110 diction. Thomas v. Womack, 64 N. C., 657; Cheatham v. Crews, 81 N. C., 343, and cases cited in the opinion. An insufficient affidavit on which an attachment has issued may be amended. Brown v. Hawkins, 65 N. C., 645. A change may be made in the plaintiff in the warrant tried before a justice and removed to the superior court on appeal, by the substitution of the state in place of the overseer of the road in the latter court. State v. Cauble, 70, N. C., 62. But the correction of false recitals of facts should be in conformity to the truth. Wolfe v. Davis, 74 N. C. 597. The cases cited by the plaintiff’s counsel are not in point. It is not proposed to contradict a record by parol evidence but to correct a false recital in the record itself. Thus amended, there was no breach in the contract of the surety and the court properly declined to render judgment against him. There is no error. No error. Affirmed.