Cantwell v. Herring.

Douglas, J. This was a civil action based on a contract coming on to be heard upon the complaint and answer. The plaintiff moved for judgment upon the sworn complaint, alleging that the verification of the answer was insufficient. The Court held with the plaintiff that the verification of the answer was not sufficient, whereupon the defendant asked leave to amend such verification. Such leave was granted *82 over tbe objection of tbe plaintiff. On motion of tbe defendant, tbe Court tlion allowed an amended answer to be filed, tbe plaintiff again objecting. Tbe plaintiff assigns as error (1) tbe refusal of bis Honor to grant tbe motion of tbe plaintiff for judgment on tbe sworn complaint; (2) in allowing tbe defendant to amend bis verification of tbe answer;, (3) in allowing an amended answer to be filed.- This presents the sole question whether tbe Court below acted within the limits of its lawful discretion in permitting an amendment of tbe verification to tbe answer over tbe objection of tbe plaintiff. We think it did. Sections 272-274, Code, give ample powers of amendment, and these provisions have uniformly been beneficially construed by this Court. In fact, in Gilchrist v. Kitchen, 86 N. C., 20, it is held that, independently of Tbe Code, “tbe Superior Courts possess an inherent discretionary power to amend pleadings or allow them to be filed at any time, unless prohibited by some statute, or unless vested rights are interfered with.” Erom tbe wording of The Code, as well as its essential reason, we must conclude that tbe power of amendment extends to tbe verification of pleadings. We can find no decision in our reports to tbe contrary. We are cited to several cases, but, so far from sustaining tbe contention of tbe plaintiff, they sustain tbe ruling of tbe Court below. In Mallard v. Patterson, 108 N. C., 255, an unverified answer was filed to a verified complaint, and, after tbe lapse of five years, tbe defendant asked to be allowed to verify this answer, or to file a new one properly verified. This Court says (on page 258, 108 N. O., page 94): “Clearly, be was not entitled to do so as of right. It was discretionary with tbe Court to allow or disallow bis application, or grant tbe same with limitations. Tbe Court allowed him to answer, alleging ‘meritorious’ defenses, but not to avail himself of tbe statute of limitations. This tbe *83 Court might do, and its exercise of .discretion in such respect is not reviewable in this Court.” In Griffin v. Light Co., 111 N. C., 434, the Court says: “The verification having been sufficient, it was error to refuse the plaintiff judgment because an unverified answer was filed. * * * It is true the Court might, in its discretion, have extended the time for the defendant to file its answer so as to give opportunity, if desired, to verify it, * * * and the exercise of this discretion is not reviewable. * * * But jn the present case that discretion was not exercised. Why it was not asked does hot appear, unless, as is probable, the defendant could not verify a denial of the plaintiffs allegations in a plain action on a note in his possession.” In Curran v. Kerchner, 117 N. C., 264, the verified complaint set out two notes — one for $5,000, and the other for $2,000. The defendant answered as to the first note, but was silent as to the second. The defendant did not ask to be allowed to amend his answer in any way, probably from his inability to verify a sufficient denial. Under such circumstances, the Court held that the plaintiff was entitled to judgment on the $2,000 note for want of answer. There was no question whatever as to the power of the Court below to grant leave to amend. Skinner v. Terry, 107 N. C., 106, refers entirely to setting aside a judgment for excusable neglect. The same question is raised in Phifer v. Insurance Co., 123 N. C., 405. It there appears that at the January Term the defendant moved before Judge Greene for a continuance in order to amend its verification. This motion the Court refused, apparently in the simple exercise of its discretion, and gave judgment for the plaintiff. Afterwards, at the August Term, before Judge Starbuck, the defendant moved to set aside the judgment on the ground of mistake, surprise, or excusable neglect. The Court, as a matter of law, refused to grant the defendant’s *84 motion, and it was this ruling that was sustained on appeal. Judge Greene's refusal to continue. does not appear to bave been under discussion. Having thus considered tbe cases cited by tbe plaintiff, we now come to those relied upon by tbe defendant. In Payne v. Boyd, 125 N. C., 499, tbe Court says, on page 502, 125 N. C., page 632: “We deem it necessary to adhere to tbe reasonable enforcement of this rule in the interest of substantial justice. In the present case it does not appear to work any hardship, and in all cases tbe party can appeal to tbe discretionary power of amendment lodged in tbe Court, which we doubt not will be exercised upon all proper occasions.” In Best v. Dunn, 126 N. C., 560, tbe Court says: “Phifer v. Insurance Co., 123 N. C., 410, and Dole v. Boyd, 125 N. C., 496, held that, tbe verification of tbe complaint being insufficient, a judgment by default final should be corrected into default and inquiry, but it was not held that tbe Court could not permit a proper verification.” Tbe concurring opinion in this case says: “I merely wish to emphasize tbe fact that this Court did not intend, by its decisions in Phifer v. Insurance Co., 123 N. C., 410; Cole v. Boyd, 125 N. C., 496, and Payne v. Boyd, 125 N. C., 499, to limit in any degree, even by disapproval, tbe power of tbe court below to allow amended verifications in tbe interest of substantial justice. Tbe object of those decisions was to compel a sufficient verification, so that a pleader, who took advantage of tbe form of the statute, would be equally bound by its substantial purpose. * * * Where tbe allowance of such an amendment tends to a fair trial of tbe case upon its merits, I think it is eminently proper that tbe Court should grant it, giving, of course, to tbe adverse party a reasonable opportunity to meet tbe amended pleadings.” Tbe question as to whether the original verification to tbe answer was *85 really insufficient is not before us, and bence we express no opinion on that point. Eor tbe reasons above stated, the judgment of the court below is Affirmed.- MONTGOMERY, J., dissents.