Baggarly v. . Calvert

ByNüM, J. The allowance or refusal of the motions made by the defendants, was a matter of discretion for his Honor, and we think he so exercised that discretion, as to promote the ends of justice; under O. C. P., sec. 64, subsection 3-4, an action does not abate by the death of the plaintiff, unless so adjudged by the Court. The law wisely entrusts that power to him, in order that actions may not be dismissed hastily, by surprise, by taking advantage of ignorance, poverty, or, as in this case, because no one has administered upon the estate of the plaintiff,..so as to become a party. The Court will, therefore, in each particular case, so mould and direct the practice and procedure by giving time, requiring notice and other rulings, as will most effectually subserve the ends of j ustice. The section referred to supra, is as follows:” At any time after death, marriage or other disability of the party plaintiff, the Court in which the action is pending, upon notice to such persons as it may direct,. *690 and upon application of any person aggrieved may, in its dis cretion, order that the action be deemed abated, unless the same be contjnued by the proper parties, within a time, to be fixed by the Gourt, not less than six months, nor exceeding one year from the granting of the order.” This section of the Code of Civil Procedure vests the Court with plenary powers in the premises, and this Court sees no abuse of power which it can revise. Smith v. Mitchell, 63 N. C. Rep. 620. The same may be said of the refusal of his Honor to dismiss, because of the non-compliance with the rule to give security j’or costs, and to make affidavit of merits. These also are .matters of discretion, which this Court will not review. Judgment affirmed, and cause remanded, that the administrator of A. Baggarly be made a party, and on certificate of merits being filed by counsel, and affidavit in due form, of inability to give other security, the plaintiff will be allowed to prosecute the action. As the plaintiff has not been diligent in complying with the «orders of the Court below, he mast pay the costs of this Court. Pee CubiaM. Judgment affirmed.