Amendment — Pleading — Counterclaim.
1. An amendment which includes a change of plaintiffs is allowable, and the defendant's demurrer was properly overruled.
2. A complaint without verification is not subject to a motion to dismiss; its effect is to dispense with the oath in support of any subsequent pleading.
3. An answer setting up a counterclaim, but which fails to show that the same subsisted between the parties when the action was begun, or that it arose out of, or was connected with the subject of the plaintiff's action, is demurrable.
SMITH, C. J.
There were some exceptions taken during the progress of the trial which were not pressed or relied on in the argument, and we advert to them only to say, that we regard them as untenable. We will consider the others.
1. The amendment authorized by the court, in our opinion, included a change of plaintiffs, and within the competency of the court to permit. An amendment in changing plaintiffs has been repeatedly allowed. In Bullard v. Johnson, 65 N.C. 436, and State v. Cauble, 70 N.C. 62, such substitution was made in the superior court upon an appeal from a judgment of a justice of the peace. And in March v. Verble, 79 N.C. 19, a plaintiff was made during a trial before a jury. See also, Cheatham v. Crews, 81 N.C. 343; Gilchrist v. Kitchen, 86 N.C. 20, and numerous cases of amendment.
2. The demurrer to the amended complaint, if not frivolous, (28) rests upon no substantial grounds, and the causes assigned are entirely insufficient. It was therefore properly overruled.
3. The defendant's motion to dismiss the amended complaint was irregular in itself, and was properly refused. The only regular motion that could be made was to withdraw it from the files, and if put in that form, it should have been denied. The effect of filing an unverified pleading is to dispense with the oath in support of any subsequent pleading.
4. The demurrer to defendant's counterclaims was rightfully sustained. These were neither set out and shown to be within section 101 of the Code, and subsisting between the parties when the action was begun, nor are they described as arising out of the contract set out in the complaint, or connected with the subject of the plaintiff's action, so as to be capable of being thus asserted.
Upon a consideration of the whole record, we find no error, and the judgment must be affirmed.
No error. Affirmed. Cited: Kron v. Smith, 96 N.C. 392; Brown v. Mitchell, 102 N.C. 374; Jarrett v. Gibbs, 107 N.C. 304; Maggett v. Roberts, 108 N.C. 177; Puffer v. Lucas, 112 N.C. 382; Comrs. v. Telegraph Co., 113 N.C. 220; Smith v. French, 141 N.C. 10; Campbell v. Power Co., 166 N.C. 490; Clevenger v. Grover, 212 N.C. 16; Barber v. Edwards, 218 N.C. 732.