Moore v. North Carolina Railroad

ByNüm, J. The death of the plaintiff, Moore, was suggested at Fall Term, 1872, and at Spring Term, 1873, Carmer was made plaintiff, as the administrator of Moore, and the- *530 case so stood upon tbe docket until the Spring Term, 1875. The defendant, at that Term, moved that the action be abated, because Cir.uer was not the administrator, and there was no party plaintiff. This motion was met by a counter motion of the coaansel of Carmer, to amend the record nuncpro tunc, by making Carmer the plaintiff as assignee of Moore; instead of administrator. In support of this motion an affidavit of the counsel of Carmer, was read, to the effect that Moore, previous to his death, but after the institution of the action, assigned his claim to Carmer, and that the amendment of Spring Term, 1873, inadvertently made Cai'mer, plaintiff as administrator, instead of as assignee, as was intended. When the cause of action survives the suit does not abate by the deatli of the plaintiff, but only on the application of tlie party aggrieved, and then only in the discretion of the court and in a time to be fixed, not less than six months nor more than one year from the granting of the order. C. C. P., sec. 64 (3). So the action had not abated, but was still pending. The power of the court to make the amendment requested, is unqaaestionable, for it is conferred by statute expressly. By sec. 64 (1), C. C. P., it is provided: First, In case of death, marriage or other disability of a party, the coaart, on motion at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. And Second, “ in case of any other transfer of interest, the action shall bo continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action.” The amendment was made under the second clause of this section. It prescribes no time within which the amendment shall be made, and it woaald seem clear that the court, in its discretion, may allow it any time before the action is abated, without reference to the life or death of the original plaintiff. But even if the motion of the *531 plaintiff bad been made under the first clause of the 64th section, (which however, we think applies to parties who had not parted with their interest in their life time,) yet we would be disposed to treat the 'affidavit of Mr. Brown as a supplemental complaint, in order to support the amendment. So qu t.cunqus via data, the amendment was proper. There is no error. Pee CueiaM. Judgment affirmed.