Bullard v. . Johnson

Pearson, C. J. The Court may before or after judgment, amend, by adding or striking out the name of any party, or by conforming the proceedings to the facts proved. C. C. P. sec. 132. This provision, and numerous others of the C. C. P. show, that its purpose is to prevent actions from being defeated on grounds that do not effect the merits of the controversy, whenever it can be done by amendment. The pervading idea being to settle controversies by one action, and thereby prevent the loss of the labor and money expended in that action, and the necessity for incurring like labor and expense in a second. Whether under this broad power of amending, the Superior Court in an action by A, could strike out the name of A and insert that of B, a stranger to the controversy, either directly or indirectly, as by first adding the name of B as co-plaintiff,, and then striking out the name of A, is a question not now before us; for Bullard, the administrator of the assignee of the reversion is not a stranger, but is the person entitled to the subject of the controversy according to the facts proved. Our case is that of an action commenced in the name of the lessor of a term of years tor rent accrued after he had assigned the reversion ; and the question is, had the Court power to amend by striking out the name of the assignor, and inserting that of the assignee as plaintiff ? At the last Term of this Court, it was decided after mucli *439 argument, thatrent service was incident to the reversion, and that the rent not accrued passed to the assignee. Kornegay v. Collins, 65 N. C. 69. Before that case, it appears to have been a question of doubt, among the members of the profession, whether the rent passed to the assigeee of the reversion, or belonged to the lessor as a personal chose in action. In this case the action had been commenced in the name of the lessor; and after that decision the motion to amend was made. "We concur with his Honor in the opinion that he had power to allow the amendment; and we will add that upon the facts proved, it was a proper case for its exercise. The terms imposed upon the plaintiff, secured to the defendants all the advantage which they had any right to expect. And there was no controversy between the assignor and the assignee; but the controversy was, that the defendants were not disposed to pay the rent to either of them, and to set up claims for repairs. The action being in the name of the assignor, the attempt was to defeat it on the ground that it should have been in the name of the assignee. This difficulty did not touch the merits of the case, and was properly put out of the way by the amendment. The exceptions to the charge ’and to the rate of damages,' were not argued in this Court, and it is unnecessary to discuss them. There is no error. Per Curiam. Judgment affirmed.