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.
FAIRCLOTH, J.
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.