E. F. Kirwan Manufacturing Co. v. Truxton

Spruance, J.: This motion is to strike out all of the pleas in bar, except the last, and to amend said last plea so as to make it a plea in abatement, it being alleged that it is in substance a plea in abatement, but lacks the proper form. We have no doubt about this subject. We have much more imperative and extensive power in this regard than any English court we know anything about. The Constitution, Section 24, Article 4, provides: “In civil causes when pending, the Superior Court shall have the power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments, impleadings and legal proceedings, so that by error in any of them, the determination of causes, according to their real merits, shall not be hindered,” etc. The Revised Code, of 1893, Section 11, Chapter 112, provides : “ In any civil cause pending before the Superior Court, the said Court shall have power, at any time before judgment, to allow amendments either in form or substance, of any process, pleading or proceeding, in such action on such terms as shall be just and reasonable.” We therefore think we have ample power to grant this motion and to allow the amendment asked for. When the motion for the [51] continuance of this case was made at the last October Term of this Court, we find in looking at the report of the case, (1 Pennewill, 409) that one of the grounds for granting the application for continuance was as follows: “It was admitted that the plaintiff at the time of bringing this suit was insolvent and the property in the hands of a receiver. The receiver was not made a party, and the defendant had no knowledge whatever of the insolvency until within a few hours past, and had no opportunity to avail himself of any defence if any, growing out of that fact, and we think he ought to have time to examine that question and take such advantage of it as he is entitled to,” Counsel for the defendant have examined into the question then raised, and have come to the conclusion that that fact cannot properly be brought before [the ¡Court except upon a plea of abatement, and to refuse this application would be wholly inconsistent with the ruling of the Court upon the application at the last term. We have not the slightest hesitancy about it, and grant the motion.