Opinion
(January Term, 1878.)
Practice — Appeal from Justice's Court — Amendment of Pleadings.
Where in an action brought by appeal to the Superior Court from a justice's court the defendant alleged that his written answer filed in the justice's court was lost, and the court thereupon remanded the case to the justice, with leave to perfect the pleadings: Held, to be error. In such cases the court had the power, and it was its duty, to perfect the pleadings and proceed with the trial.
APPEAL from an order made at Full Term, 1877, of SAMPSON, by Moore, J.
The action in which the order was made was commenced before a justice of the peace to recover $100, and upon the suggestion of the defendant that the title to real estate was involved therein, the justice dismissed the case, and the plaintiff appealed to the Superior Court. When the case was called for trial the defendant stated that his answer filed in writing before the justice had been lost, and the plaintiff denied that such answer had been filed. Whereupon his Honor ordered that the case be remanded to the justice, with leave to perfect the pleadings, from which order the plaintiffs appealed.
J. L. Stewart and Battle Mordecai for plaintiff.
Kerr Kerr for defendant.
The justice of the peace adjudged that he had not jurisdiction of the action, from which the plaintiffs appealed to the Superior Court. In that court the defendant alleged that his written answer filed in the lower court had been lost or destroyed, and thereupon his Honor remanded the case to the justice with permission to perfect the pleadings. This was error. His Honor had the (79) power, and it was his duty, under the liberal provisions of The Code, to perfect the pleadings and proceed with the trial. Adams v. Reeves, 76 N.C. 412 has no application. The present is a case of supplying lost papers and not of amending the record.
PER CURIAM. Reversed.
Cited: Moore v. Garner, 109 N.C. 158.