{
  "id": 8601568,
  "name": "A. J. BRADSHAW v. WILLARD WARREN and Wife, MARY WARREN",
  "name_abbreviation": "Bradshaw v. Warren",
  "decision_date": "1939-10-18",
  "docket_number": "",
  "first_page": "354",
  "last_page": "356",
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    {
      "type": "official",
      "cite": "216 N.C. 354"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "210 N. C., 92",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8623495
      ],
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    {
      "cite": "215 N. C., 442",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8630119
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/215/0442-01"
      ]
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  "last_updated": "2023-07-14T17:26:30.134660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "A. J. BRADSHAW v. WILLARD WARREN and Wife, MARY WARREN."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nThis case was here before. Bradshaw v. Warren, 215 N. C., 442. At page 445 it is said: \u201cThe petitioner moved in this Court to be allowed to amend his petition. Such a motion would he made more properly in the court below, to which the case is sent back for a new trial. While such a motion is ordinarily in the discretion of the trial court, that discretion should he liberally used in aid of justice.\u201d\nThe order of the court below, in part, says: \u201cIt is ordered, therefore, in the exercise of the court\u2019s discretion that the petitioner be permitted to amend his petition,\u201d etc.\nThe 5th allegation in petitioner\u2019s \u201camended petition\u201d reads as follows: \u201cThat the call of the line in controversy as noted in the plat to which both the deed of your petitioner and the defendants refer was set as a call \u2018S. 89\u00bd deg. E. 275 feet to a point in the T. W. Austin line,\u2019 and said call is erroneous, and should have been \u00a3S. 79% deg. W. 275 feet to a point in the T. W. Austin line\u2019; that said error was committed by the draftsman in setting down the plat of the line constituting the boundary between petitioner and respondents, which error and mistake is a proper subject of correction by the court; petitioner further alleges that it was the intention of all parties, when said line was platted, that same should be a right-angle or 90-degree line, with the call \u2018S. 79% deg. W.\u2019 instead of \u2018S. 89% deg. E.,\u2019 and that the erroneous noting of the call as above stated was a mutual mistake and should be corrected by this court.\u201d\nN. C. Code, 1935 (Michie), sec. 637, is as follows: \u201cWhenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.\u201d Sharpe v. Sharpe, 210 N. C., 92 (97).\nIt is well settled that no amendment will be allowed which substantially changes the cause of action. In the present case the amendment does not substantially change the cause of action and the court below did not exceed its power in allowing the amendment. Allowance or refusal to allow amendment to a pleading cannot be reviewed on appeal, except for an abuse of discretion.\nFor the reasons given, the appeal is\nDismissed.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Townsend & Townsend for plaintiff, petitioner.",
      "Thos. L. Warren and G. W. Klutz for defendants, respondents."
    ],
    "corrections": "",
    "head_matter": "A. J. BRADSHAW v. WILLARD WARREN and Wife, MARY WARREN.\n(Filed 18 October, 1939.)\n1. Courts \u00a7 2c\u2014\nWhere the clerk of the Superior Court erroneously hears a proceeding over which he does not have jurisdiction, an appeal to the Superior Court confers jurisdiction upon it to hear and determine the whole matter. Michie\u2019s N. C. Code, 637.\n2. Pleadings \u00a7 23\u2014\nIn this processioning proceeding, Michie\u2019s N. C. Code, 361-364, the Supreme Court granted a new trial for error of law, and upon the subsequent hearing the trial court allowed petitioner to amend to allege mutual mistake in entering one of the calls in the deeds of the parties. Held: The amendment does not substantially change the cause of action, and the ruling of the court upon the petition to be allowed to amend is not \u25a0 reviewable in the absence of abuse of discretion.\nAppeal by defendants from Armstrong, J., at May Term, 1939, of Caldwell.\nAppeal dismissed.\nThis is a processioning proceeding instituted by the petitioner appel-lee, A. J. Bradshaw, against the defendants Willard Warren and wife, Mary Warren, on 28 July, 1938, under chapter 9, Public Laws of North Carolina, entitled \u201cBoundaries,\u201d being sections 361-364 of the Code (Michie), to establish the boundary line between the petitioner and the defendants\u2019 adjoining lots in the city of Lenoir, North Carolina, the petitioner claiming ownership of Lot No. 2, and the defendants claiming ownership of Lot No. 1 of Jennings-Dimmette subdivision, of record in Plat Book No. 1, page 47, office of the register of deeds for Caldwell County.\nThe proceeding was erroneously heard before the clerk of the Superior Court of Caldwell County, the defendants in their answer having denied petitioner\u2019s ownership, and from a judgment in favor of the petitioner defendants appealed to the Superior Court.\nThe proceeding came on for trial in Superior Court of Caldwell County before Warlick, Judge, and a jury, at the January Special Term, 1939, on the original petition and answer filed, and from a verdict and judgment in favor of the defendants, the petitioner appealed to the Supreme Court. At the Spring Term, 1939, the petitioner was awarded a new trial on the ground of insufficient instructions to the jury.\nThe case being remanded for a new trial, the petitioner, at the May Term, 1939, of Caldwell Superior Court, moved, orally, to amend his petition in several respects and asked leave of the court to file the \u201cAmended Petition\u201d herein set forth, dated 22 May, 1939. Prom an allowance of this motion and order permitting the amendments the defendants excepted, assigned error, and appealed to the Supreme Court.\nTownsend & Townsend for plaintiff, petitioner.\nThos. L. Warren and G. W. Klutz for defendants, respondents."
  },
  "file_name": "0354-01",
  "first_page_order": 420,
  "last_page_order": 422
}