{
  "id": 8651304,
  "name": "W. B. CUSHING v. W. H. STYRON",
  "name_abbreviation": "Cushing v. Styron",
  "decision_date": "1889-09",
  "docket_number": "",
  "first_page": "338",
  "last_page": "341",
  "citations": [
    {
      "type": "official",
      "cite": "104 N.C. 338"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "92 N. C., 695",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "81 N. C., 180",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state",
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    {
      "cite": "65 N. C., 645",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
        "/nc/65/0645-01"
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    {
      "cite": "68 N. C., 283",
      "category": "reporters:state",
      "reporter": "N.C.",
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        2083628
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      "case_paths": [
        "/nc/68/0283-01"
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    {
      "cite": "71 N. C., 291",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277800
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      "case_paths": [
        "/nc/71/0291-01"
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  "analysis": {
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  "last_updated": "2023-07-14T17:01:43.175763+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. B. CUSHING v. W. H. STYRON."
    ],
    "opinions": [
      {
        "text": "Merrimon, C. J.\n\u2014 after stating the facts: The Clerk of the Court, acting as and for the Court, had authority, out of Term time, to grant the warrant of attachment (The Code, \u00a7351), and, likewise, to allow all proper amendments in that respect and connection. (The Code, \u00a7\u00a7251, 273.) From his decision an appeal lay to the Judge, which might be taken within ten days after the entry of the order or judgment complained of, and, within three days after the appeal was taken, it was the duty of the Clerk to \u201c prepare a statement of the case, of his decision, and of the appeal,\u201d and sign the same. He should, within that time, have exhibited this statement to the parties or their attorneys; if it were satisfactory, the parties or their attorneys, should have signed the same; if either party objected to the statement as partial or erroneous, he should have put his objection in writing, and this objection should have been attached to the statement of the case. Within two days after this was done, the Clerk should have sent such statement and the objections, and copies of all necessary papers, by mail, or otherwise, to the Judge for his decision. (The Code, \u00a7\u00a7252, 253, 254.) Palmer v. Bosher, 71 N. C., 291.\nThe Clerk failed to observe these statutory regulations. The Judge, seeing this, should at once have returned the statement to the Clerk, with directions to submit it to all of the parties or their counsel, as the statute directed, and then return the same with objections, if any, to him.\nThere is no substantial reason why the Clerk should not have stated the grounds of his judgment denying the amendment, after an appeal was taken. Indeed, it was proper and necessary that he should do so, to the end the Judge might review his judgment and correct the errors complained of, if they were such. The statute (The Code, \u00a7254) directs that he \u201cshall prepare a statement of the case,\u201d that is, a statement presenting the grounds of objection, and exceptions to his orders, and judgments objected to.\nBut it was not necessary to return the statement of the case to the Clerk in this case, because the parties agreed that the Judge should hear the appeal in Term time, as he did do. This gave him complete control of the matter in every aspect of it. The whole action was before him, and he copld grant, or deny, the amendment of the affidavit in the exercise of a sound discretion. The jurisdiction of the whole action, including all the incidental and ancillary proceedings, was that of the Court \u2014 not that of the Clerk thereof \u2014 he was acting out of Term for the Court and as its servant. As the Court had such jurisdiction, and the judgment entered by the Clerk was objected to and appealed from, the motion to amend the affidavit was not determined. It was open still, and the Court\u2014the Judge in Term\u2014 might have heard it upon its whole merits and have granted or denied it\u2014indeed, it should have done so. There was no necessity for, nor propriety in, sending the matter back to the Clerk. The Court itself could have disposed of the matter much more acceptably than the Clerk, and conclusively. Marsh v. Cohen, 68 N. C., 283.\nThe Court had power to allow the amendment affecting the substance of the affidavit. This has been decided repeatedly and broadly. Brown v. Hawkins, 65 N. C., 645; Penniman v. Daniel, 93 N. C., 332; Branch v. Frank, 81 N. C., 180; Bank v. Blossom, 92 N. C., 695.\nThe Court properly held that the objection to the statement of the Clerk as to the grounds of his denial to the motion to amend the affidavit, could not be sustained, but inasmuch as all the parties were before the Court in Term time, it should have heard the motion and allowed, or denied, it upon its merits. So much, therefore, of the order as directs the Clerk to allow, or deny, the motion, must be reversed, and the Court, in Term time, will allow or deny it,as indicated in this opinion. To that end, let this opinion be certified to the Superior Court.\nError.",
        "type": "majority",
        "author": "Merrimon, C. J."
      }
    ],
    "attorneys": [
      "Mr. T. W. Strange, for the plaintiff.",
      "Mr. A. W. Haywood, for the defendant."
    ],
    "corrections": "",
    "head_matter": "W. B. CUSHING v. W. H. STYRON.\nAttachment \u2014 Proceedings before the Clerk \u2014 Appeal\u2014Amendment \u2014 Jurisdiction.\n1. Orderly method of procedure before the Clerk in attachment proceedings, and appeals therein, discussed by Mekkimon, C. J.\n2. The Clerk has power to permit an amendment affecting the substance of an affidavit in attachment proceedings.\n3. Where the Clerk refuses to allow an amendment, he may, and should, state his reason for such refusal, even after appeal to the Court in Term.\n4. Where the parties agree that the Judge shall hear the appeal in Term, he acquires jurisdiction of the whole case, and should finally dispose of it on its merits, without remanding it to the Clerk.\nThis is a civil ACTION, tried before Shipp, J., at April Term, 1889, of New HaNOVer Superior Court, upon a motion to vacate a warrant of attachment.\nIn the course of the action, the plaintiff availed himself of the provisional remedy of attachment. The defend\u25a0ant appeared and moved to discharge the same. The plaintiff, admitting that the affidavit to obtain the warrant of attachment was defective, moved before the Clerk of the Court to amend the same in a material respect. The Clerk denied the motion and gave judgment that the attachment be discharged, but, in such judgment, he failed to state the ground of such denial. From this judgment the plaintiff appealed to the Judge. Within three days after the rendition, of the judgment, the Clerk, on motion of the plaintiff\u2019s counsel, made and signed his statement of the case on appeal, in which he stated that he denied the motion to amend, upon the ground that he was of opinion that he \u201chad no right to permit such amendment,\u201d &c. The defendant\u2019s counsel had no notice of the filing of such statement among the papers in the case. By consent, the appeal was afterwards heard by the Judge in Term time the defendant objecting that the Clerk had no authority to make the statement mentioned, on the ground that it was made subsequent to the rendition of the judgment, in the absence of his counsel, and that the Clerk could not thus explain the grounds of his judgment.\nThe Court \u2014 the Judge in Term \u2014 reciting that the Clerk, having stated that he was of opinion that he had not, as matter of law, the right to permit the amendment mentioned, and that he, therefore, refused the same, \u201c adjudged that the said judgment (of the Clerk) be reversed, and that this cause be returned to the said Clerk, with instructions to him to exercise his discretion and to grant, or refuse, the amendment asked for as to him may seem right and proper in the exercise of a reasonable discretion,\u201d &c.\nThe defendant excepted and appealed to this Court.\nMr. T. W. Strange, for the plaintiff.\nMr. A. W. Haywood, for the defendant."
  },
  "file_name": "0338-01",
  "first_page_order": 370,
  "last_page_order": 373
}