Practice — Amendment — Discretion of Judge — Premature Appeal.
1. It is in the discretion of the trial judge to allow an amendment which neither asserts a cause of action wholly different from that set out in the original complaint nor charges the subject-matter of the action nor deprives the defendant of defenses which he would have had to a new action.
2. Where a complaint alleges that defendant converted money, an amendment thereto alleging that defendant had received the money as trustee is allowable in the discretion of the court, as it neither asserts a cause of action wholly different from that set out in the original complaint nor changes the subject-matter of the action nor deprives the defendant of any defenses which he would have had to a new action.
3. An appeal from an order allowing an amendment to a pleading is premature, and will be dismissed. The right practice in such case is to note an exception and appeal from the final judgment.
4. The fact that on a former trial the correction of an error in the pleadings would have decided the case in favor of the defendant does not prevent the court from allowing the complaint to be amended.
CLARK, J.
When the case was here before ( 121 N.C. 57) the Court held that there had been error in refusing the defendant's prayer for instruction that the action was barred by the statute of limitations. When the case went back the Court below permitted the plaintiff to amend his complaint. The amendment allowed was such as rested in the discretion of the Court and was not reviewable; but had it been appealable the appeal would be dismissed as premature, since the proper course was to note an exception and appeal from the final judgment. It is true that the error on the former trial was such that its correction, as the pleadings then stood, would have decided the case for the defendant, but this did not necessarily deprive the Court of the power (113) to permit an amendment of the complaint. Bernhardt v. Brown, 118 N.C. at p. 700. The amendment neither "asserts a cause of action wholly different from that set out in the original complaint nor changes the subject matter of the action nor deprives the defendant of defenses he would have had to a new action." King v. Dudley, 113 N.C. 167, and cases cited Clark's Code (2 Ed.), pp. 223, 224.
Appeal dismissed.
Cited: Goodwin v. Fertilizer Works, 123 N.C. 162; Hockfield v. R. R., 150 N.C. 421; Hardware Co. v. Banking Co., 169 N.C. 747; Lefler v. Lane, 170 N.C. 183; R. R. v. Dill, 171 N.C. 177.