{
  "id": 8652270,
  "name": "W. F. CAMPBELL, Administrator, v. A. J. SMITH et al.",
  "name_abbreviation": "Campbell v. Smith",
  "decision_date": "1894-09",
  "docket_number": "",
  "first_page": "498",
  "last_page": "499",
  "citations": [
    {
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      "cite": "115 N.C. 498"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "105 N. C., 74",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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      "category": "reporters:state",
      "reporter": "N.C.",
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        8691550
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    {
      "cite": "44 N. C., 377",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11276654
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      "opinion_index": 0,
      "case_paths": [
        "/nc/44/0377-01"
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    {
      "cite": "52 N. C., 465",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2088586
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      "case_paths": [
        "/nc/52/0465-01"
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  "last_updated": "2023-07-14T20:29:52.252220+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. F. CAMPBELL, Administrator, v. A. J. SMITH et al."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nIf the person upon whom a summons is incorrectly returned as \u201c served \u201d moves to have the record amended, he is entitled to have it amended, so far as it may affect him, as a matter of right, so that the record may \u201cspeak the truth.\u201d Not so as to the officer making the return in a proceeding \u2022 against him for liability for such return, for then, as to him, the record does already speak the truth, which is that he made such and such return. Whether such return was in fact true or not when made, is not a matter of record evidence. Amendments in such cases have been allowed by the Courts, at the instance of the officer, to prevent hardships (Hassell v. Latham, 52 N. C., 465; Patton v. Marr, 44 N. C., 377; Finley v. Hayes, 81 N. C., 368,) but only \u201cby the leave of the Court,\u201d in the exercise of the powers wisely vested in the presiding Judge. To hold that in such cases, \u201c as a matter of law,\u201d the officer has the right to amend his return, would be simply a repeal by\u201dthe Courts of every statute which the Legislature in its wisdom, has seen fit to provide as a security against carelessness or fraud in the return of process. Tomlinson v. Long, 43 N. C., 469; Albright v. Tapscott, Ib., 473. The Courts have never gone further than to leave the question of relief to the judgment of the presiding Judge, under the discretionary power of amendment in meritorious cases. Whether even this4could be done after proceeding for the penalty, or motion for amercement had been entered, was left an open question in Manufacturing Co. v. Buxton, 105 N. C., 74, though finally sustained in Stealman v. Greenwood, 113 N. C., 355. But that question is not before us. His Honor, in effect, held that he had no power, but, \u201c as a matter of law,\u201d the Sheriff was entitled to take his amendment. In this, there was error.\nError.",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Stack & Biclcett for plaintiff (appellant).",
      "Messrs. Watson & Buxton, for defendants."
    ],
    "corrections": "",
    "head_matter": "W. F. CAMPBELL, Administrator, v. A. J. SMITH et al.\nAmendment of Officer\u2019s Return of Process \u2014 Discretion of Judge.\nAn officer lias not, \u201c as a matter of law,\u201d tlie right to amend his return of process in order to correct an error, but it is within the discretion of the presiding Judge to permit such amendment in meritorious cases.\nThis was a motion by F. F. Rankin, Sheriff, to be allowed to \u201c correct \u201d his return made on a summons in a special proceeding, which was denied by the Clerk, but upon appeal from such refusal, Battle, J., at Fall Term, 1894, of Stokes Superior Court, permitted the amendment, and held \u201c that as a matter of law,\u201d under the circumstances, the Sheriff had a right to have the return amended. It appeared from the affidavits that a Deputy Sheriff having the summons to serve upon one Dar\u00edan Smith, who was a doctor, and with whom he was not acquainted, asked a bystander in a court room whether he knew \u201c Dr. Smith,\u201d and being directed to one Dr. J. R. Smith, made service upon the latter: The return stated that the summons had been served upon \u201c Dar\u00edan Smith.\u201d\nFrom the order of the Judge allowing the amendment, the plaintiff appealed.\nMessrs. Stack & Biclcett for plaintiff (appellant).\nMessrs. Watson & Buxton, for defendants."
  },
  "file_name": "0498-01",
  "first_page_order": 518,
  "last_page_order": 519
}