Opinion
(June Term, 1877.)
Practice — Misnomer — Amendment of Process — Waiver of Irregularity.
1. A defect in the name of a defendant in the summons is cured by the judgment by default rendered against him, under the provision of Rev. Code, ch. 3, sec. 5.
2. Where such judgment is taken before a justice of the peace and carried by appeal to the Superior Court, it is the duty of the court to make the proper amendment and proceed with the trial upon the merits.
3. Where the defendant in such case took an appeal from the justice and failed for seven terms to make any motion to dismiss, he thereby waived the irregularity complained of.
APPEAL from a justice's court, tried at January Special Term, 1877, of WAKE, before Schenck, J.
E. G. Haywood and George H. Snow for plaintiff.
Busbee Busbee for defendant.
The title of the action in the justice's court was "H. T. Clawson against W. O. Wolfe and J. W. Watson," and on the face of the summons was, "You are hereby commanded to summon J. O. Wolfe," etc. When the case was called for trial (the first time after it was docketed), the defendant moved upon the face of the papers to set aside the judgment rendered by the justice of the peace against him, and to dismiss the action, for the reason that it appeared affirmatively that no summons issued to or was served on W. O. Wolfe, the defendant, and that the return of the constable was defective.
The plaintiff resisted the motion, and offered to prove by the constable that it was served on this defendant, and asked that the return be amended; and, further, that the defendant had waived all irregularity in the proceeding by giving the justice notice of appeal, after judgment upon the alleged defective summons had been rendered and execution issued thereon. His Honor being of opinion with the defendant, (101) gave judgment accordingly, and the plaintiff appealed.
There is error. It is provided in Rev. Code, ch. 3, secs. 5, 6, that where a judgment shall have been rendered in any case upon default, nil dicit, etc., it shall not be reversed, impaired, or in any manner affected for any defects in the process or pleadings, to wit, for any mistake in the name of any party or person etc., where the correct name shall have been once rightly alleged in any part of the pleadings or proceedings; and that such omissions, defects, and variances, not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court in which the judgment shall be removed by appeal. This statute covers this case. The name of the defendant was correctly set forth in the title of the summons, and in the declaration, which was upon a note signed by the defendant, and which he does not deny. The only defect is contained in the body of the summons, where he is named J. O. Wolfe, when it should have been W. O. Wolfe. We think it sufficiently appears, without the aid of the proposed affidavit, that W. O. Wolfe was actually served with process, and was not in the slightest degree misled. The officer returns upon the process that it was "served," and the defendant does not deny that it was served upon him, but, we think, by fair inference, admits it when, in his notice of appeal and as one of the grounds of it, he says "that judgment was rendered without any service of proper summons upon the defendant W. O. Wolfe." If no summons had been (102) served upon him, it was incorrect to insert the word "proper," which, having been inserted, must have its proper effect.
The title of the summons was against the defendant by his proper name, the declaration of the cause of action was against him by his proper name, the judgment also correctly set forth his name, and finally the summons was served upon him, containing such a description of the cause of action that he could not have been reasonably misled by what he must have known was a clerical mistake as to a single letter. It was, therefore, the duty of the court, under the provisions of the Rev. Code before cited, and C. C. P., secs. 128, 135, to make the amendment and proceed with the trial. Gibbs v. Fuller, 66 N.C. 116. We place our decision upon the proper construction of our statutes, and therefore we do not consider the English authorities cited by the defendant's counsel as applicable.
We are also of opinion that W. O. Wolfe, having admitted himself to be the defendant of praying an appeal and defending the action for seven terms of the court, without having specified the grounds of his motion to set aside the judgment and dismiss the action, or moved in the matter, thereby waived the irregularity complained of.
PER CURIAM. Venire de novo.
Cited: Patterson v. Walton, 119 N.C. 501.