majority"> Per Curiam.

This case was here before. Bradshaw v. Warren, 215 N. C., 442. At page 445 it is said: “The 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.”

The order of the court below, in part, says: “It is ordered, therefore, in the exercise of the court’s discretion that the petitioner be permitted to amend his petition,” etc.

The 5th allegation in petitioner’s “amended petition” reads as follows: “That 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 ‘S. 89½ deg. E. 275 feet to a point in the T. W. Austin line,’ and *356 said call is erroneous, and should have been £S. 79% deg. W. 275 feet to a point in the T. W. Austin line’; 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 ‘S. 79% deg. W.’ instead of ‘S. 89% deg. E.,’ and that the erroneous noting of the call as above stated was a mutual mistake and should be corrected by this court.”

N. C. Code, 1935 (Michie), sec. 637, is as follows: “Whenever 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.” Sharpe v. Sharpe, 210 N. C., 92 (97).

It 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.

For the reasons given, the appeal is

Dismissed.

Citation profile

How this case has been treated — in progress