Opinion
(Filed 28 October, 1914.)
Judgments Conditional — Courts — Pleadings — Amendments — Discretion.
An order allowing a plaintiff to amend his complaint within thirty days, with provision that if he fail either to file his complaint within the time allowed or pay the cost imposed as a condition, the action shall stand dismissed without further order, is an alternative or conditional judgment and void, leaving it open to the discretion of a succeeding judge to allow the amended pleading to be filed.
APPEAL by defendant from Daniels, J., at July Term, 1914, of ONSLOW.
Duffy Koonce, T. C. Wooten, J. F. Wooten, and G. V. Cowper for plaintiffs.
Frank Thompson, D. E. Henderson, and L. R. Varser for defendants.
Appeal from an order of the court allowing plaintiffs to file amended complaint upon payment of costs.
At April Term, 1914, Whedbee, judge, made an order in this cause, allowing the plaintiffs to file amended complaint within thirty days, which order provided that if the plaintiffs fail either to file such amended complaint or to pay the cost as shown within thirty days from the adjournment of this term, then this action shall stand dismissed without further order.
The order could not be self-executing, and the condition is a nullity. The judge could not delegate to any one the power to enter up judgment if the amended complaint was not filed.
Alternative or conditional judgments are void. This left it open to the discretion of a succeeding judge to allow the amended pleadings to be filed. Strickland v. Cox, 102 N.C. 411; Woodcock v. Merriam, 122 N.C. 734; Church v. Church, 158 N.C. 564.
Affirmed.
Cited: Campbell v. Asheville, 184 N.C. 493 (c); Flinchum v. Doughton, 200 N.C. 771 (cc); Luff v. Levey, 203 N.C. 784 (c); Hagedorn v. Hagedorn, 210 N.C. 165 (c).
(98)