Bray v. . Creekmore

*51 Clakk, J.: 1. The action was brought “State on relation of W. H. Bray” against the defendant. On motion, the words “State on relation of” were stricken out of summons and complaint, and defendant excepted. Such amendment rested in the discretion of the trial Judge, and is not appealable. Brown v. Mitchell, 102 N. C., 347; Maggett v. Roberts, 108 N. C., 174. In both these cases the amendment was identical with that here objected to. 2. The complaint having been lost, the defendant asked that the action be dismissed. The plaintiff asked to file another complaint in lieu of that which had been lost. The Court refused defendant’s motion and granted the motion of the plaintiff. The defendant excepted. The action of the Judge in allowing new pleadings to be filed in place of those lost is not reviewable. 3. The facts alleged in sections 5 and 7 of the complaint were not denied, and subjected the defendant to the penalties sued for. The Code, § 711. By consent the order was made in vacation as of Fall Term, 1890, which was within less than a . year after those causes of action accrued (The Code, §156 [2]); but, were it otherwise, the amendment was merely of the name of the party, not the insertion of a new.cause of action, as was the case in Hester v. Mullen, 107 N. C., 724, and therefore, unlike the latter case, the statute of limitations is not affected by the amendment. We may also note, that when the amendment is merely formal, as here, no necessity arises for the service of the amended summons or complaint. If the amended summons adds a new defendant, it must be served on such defendant (Plemmons v. Improvement Co., 108 N. C., 614), and where the amended complaint touches a matter of substance, the Judge may order it to be served on the defendant. Here the motion disclosed the nature and extent of the amendment asked, and when granted, the defendant .could derive *52 no benefit from service anew of the summons and complaint with merely the words “State on relation of” Stricken out of them. Affirmed.