#### FRANCIS A. CODY v. GEORGE I. HOVEY.

(Filed 10 April, 1940.)

1. Appeal and Error § 371)—

The ruling of the trial court as a matter of law that it was without power to permit defendant to amend his answer because of defect in the notice of the motion to amend, is reviewable.

*4082. Pleadings § 23 — Defects in notice of motion to amend are waived by successful application for continuance.

Where plaintiff, after notice of defendant’s intention to move to be allowed to amend his answer, requests and obtains a continuance of the motion he thereby waives his right to object that notice of the motion was not given him within the ten-day period prescribed by C. S., 515, even conceding that the provisions of that statute are applicable, the purpose of the requirement of notice being, merely to call the matter to the attention of the adverse party and to give him reasonable time for preparation.

3. Appeal and Error § 49a — Decision of Supreme Court held not to confine defendant to the procedure prescribed by C. S., 515, in seeking to amend his answer.

Where the Supreme Court holds that plaintiff’s demurrer to an affirmative defense set up in the answer should have been sustained and that defendant might move for leave to amend “in accordance with the provision of C. S., 515,” the provision for amendment of the answer in accordance with C. S., 515, is an inadvertence, and cannot be held to confine defendant to the procedure specified in that statute, the provisions of the statute not being applicable to the amendment of an answer after judgment sustaining a demurrer to an affirmative defense or counterclaim, but only to the amendment of the complaint after judgment sustaining a demurrer thereto, and the Supreme Court having no right to require defendant to adopt an inappropriate procedure in seeking an amendment to his answer.

4. Pleadings § 23 — C. S., 515, has no application to the amendment of answer after judgment sustaining demurrer thereto.

The provisions of C. S., 515, that plaintiff, after judgment sustaining a demurrer to the complaint must move to be allowed to amend within ten days after the return of the judgment or within ten days after receipt of the certificate from the Supreme Court, applies solely to amendment of the complaint after demurrer thereto is sustained, and the ten-day period prescribed by statute does not apply to an amendment of an answer after judgment sustaining a demurrer to an affirmative defense set up therein, the procedure regulating demurrer to the answer being provided by C. S., 525, which contains no reference to C. S., 515, and this conclusion is in accord with the history of the various amendments relating to civil procedure and with the principal that the adjective law will be liberally construed to promote justice and not to defeat or delay it by technical construction.

5. Same—

In determining the right of a party to be allowed to amend his pleading, the sufficiency of the matter intended to be pleaded is not germane.

Devin, J., dissenting.

Appeal by defendant from *Cowper, Special Judge,*at January Special Term, 1940, of Caldwell.

Reversed.

Tbis case was here before and is reported as *Cody v. Uovey,*216 N. C., at page 391.

The plaintiff sued upon a judgment obtained by him against the defendant in the State of New York.

*409Tbe complaint set up tbe pendency of tbe suit in New York, tbe rendition of tbe judgment therein, together with details as to tbe amount thereof, and tbe taxing of costs; alleged facts with reference to notice .and bearing in that jurisdiction; and that tbe defendant bad appealed from tbe judgment to tbe Appellate Division of tbe New York Supreme Court, and that tbe judgment bad been there affirmed; and asked that a judgment be rendered in the State court for tbe amount of tbe New York judgment, with interest, and tbe costs of tbe North Carolina proceeding.

Tbe defendant answered, admitting tbe statements of fact in tbe complaint and setting up a further defense, alleging new matter: (1) That tbe judgment was procured by fraud by reason of tbe false testimony of a witness; (2) that tbe transaction upon which tbe New York judgment was rendered was based upon a gaming contract and was therefore void in this State, as in contravention of C. S., 2144; and (3) that be was embarrassed and humiliated and bis peace of mind disturbed because •of tbe unjust prosecution of this suit, for which be claimed damages in tbe amount of $500.00. (Tbe counterclaim was subsequently abandoned .and does not appear in the present controversy as to tbe amendment.)

Tbe plaintiff demurred to tbe answer and demanded judgment upon tbe pleadings. Tbe court below sustained tbe demurrer of tbe plaintiff to tbe defense of fraud in tbe procurement of tbe judgment and as to tbe •counterclaim, overruled it as to tbe defense that tbe judgment was based upon a gaming contract, in violation of O. S., 2144, and denied tbe motion for judgment on the pleadings. Roth plaintiff and defendant appealed.

These appeals were beard at the Fall Term, 1939, of this Court, at which time this Court affirmed that portion of tbe judgment below sustaining tbe demurrer to tbe counterclaim and to tbe defense of fraud in tbe procurement of judgment, and reversed it as to overruling tbe demurrer to tbe defense that the judgment was based upon a gaming contract within tbe provision of C. S., 2144, bolding tbe facts were not sufficiently stated, and affirmed tbe judgment of tbe court below refusing judgment on tbe pleadings.

Tbe result was to reverse the trial court upon plaintiff’s appeal and .affirm it on defendant’s appeal.

In returning tbe case to tbe Superior Court for further proceeding, this Court suggested that tbe defendant should be given tbe “right to move for leave to amend in accordance with tbe provisions of C. S., 515.”

Tbe opinion of tbe Supreme Court was certified down to tbe clerk of tbe Superior Court of Caldwell County, received by him and filed on 8 December, 1939. On 19 December tbe defendant wrote to tbe plaintiff that tbe defendant would, on 8 January, tbe first day of tbe Special *410Term of the Superior Court of Caldwell County, move for leave to file an amended answer. Plaintiff’s counsel received said notice by mail on 20 December, 1939, and immediately requested that the hearing be continued until 15 January, and defendant agreed to said continuance. At this time the judge of the Superior Court hearing the matter refused to permit the defendant to amend his answer so as to set up sufficient supporting facts to the allegation that the New York judgment was obtained upon a gambling contract, and did this as a matter of law, stating that the court was without power to allow defendant to amend his answer. Defendant’s appeal from this order is now before the Court.

*Cover & Covington and Hugh L. Lobdell for plaintiff, appellee.*

*Pritchett & Strickland for defendant, appellant.*

Seawell, J.

Since the judge based his refusal to allow the amendment on a want of power under the law his judgment becomes reviewable in this Court. *Balk v. Harris,*130 N. C., 381, 41 S. E., 940; *Martin v. Bank,*131 N. C., 121, 123, 42 S. E., 558.

If we concede that it was necessary for the defendant to comply with the terms of C. S., 515, as a condition precedent to obtaining leave of court to amend his answer, the successful application of the plaintiff for a continuance of the hearing must be held as a waiver of any defect of notice, which reached him only two days after the expiration of the ten-day period. A similar rule applies where defendant has requested and the court has given time to file answer; *Garrett v. Bear,*144 N. C., 23, 56 S. E., 479; *Oettinger v. Livestock Co.,*170 N. C., 152, 86 S. E., 957; *Trustees v. Fetzer,*162 N. C., 245, 78 S. E., 152; and there is no reason why it should not apply in the present similar situation, which involves considerations of less importance. The purpose of the law is to secure to the adverse party not only notice but a reasonable time for preparation, or at least attention to the matter involved, which in this case, and in most notices of a like character, has been statutorily fixed at ten days. Here the plaintiff not only had notice but ample time was given him, at his request, for a hearing of the matter at a suitable time, according to his conveniences and the necessities of the case, at which time the plaintiff interposed no other objection to the amendment except that the notice had not been given within the ten days prescribed by C. S., 515. It is true, however, that in this Court plaintiff’s counsel argues that the amendment would be ineffective because, as he contends, C. S., 2144, would not preclude plaintiff from recovery upon his judgment obtained in a foreign state.

"We are of the opinion that the plaintiff in applying for and receiving-time to make whatever defense and whatever preparation he desired to *411make in resistance of defendant’s motion is tbe equivalent of notice and bas put bim in court.

2. Our attention bas been called by plaintiff to tbe fact tbat in tbe opinion of tbe Court, wben tbis case was here before, it is suggested tbat •defendant might move to amend by complying witb O. S., 515. Tbis may be regarded as an inadvertence from wbicb no barm bas resulted, but it cannot be maintained as an intentional exercise of tbe supervisory power of tbe Court without substantial invasion of defendant’s rights. Always tbe obligation resting upon tbe Court is not to sustain itself but to sustain tbe law. Tbis Court bas no power to require tbe defendant to adopt an inappropriate procedure in seeking an amendment to bis answer tbat will curtail bis rights under tbe statutes providing rules of procedure in tbe Superior Court. Tbe Court bas never held, in so far as we are able to determine, tbat O. S., 515, bas any application to demurrers to tbe answer, and tbe language employed in tbat section excludes tbat construction.

Section 515 refers exclusively to demurrers to complaints and not to .any demurrer to tbe answer. A separate section — C. S., 525 — deals witb demurrers to tbe answer or parts thereof and undertakes to settle tbe manner in wbicb these demurrers may be heard and determined.

It is contended tbat tbe following provision in tbis section makes section 515 applicable to tbe present case: “Tbe plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a counterclaim or defense; and be may demur to one or more of such defenses or counterclaims, and reply to tbe residue. Such demurrer shall be beard and determined as provided for demurrers to tbe complaint.”

We cannot bold tbat tbis language is sufficient to imply tbat tbe notices and limitations upon time set out in detail in section 515 are brought forward and made a part of C. S., 525, for several reasons.

Section 525 makes no reference to C. S., 515, only as such a reference might be intended or implied by connection of subject matter, and as to tbis no mention is made of tbe filing of any answer or amendment thereto — merely to tbe bearing and determination of tbe demurrer. Even if we were uninfluenced by tbe liberality of construction wbicb we are required to give procedural laws, and especially tbe Code of Civil Procedure, wbicb was enacted to relieve against tbe rigors of common law practice *(Page v. McDonald,*159 N. C., 38, 14 S. E., 642; *Bullard v. Johnson,*65 N. C., 436; *Cheatham v. Crews,*81 N. C., 343, 345), tbe concluding language of tbis section (525) is not sufficient to justify us in assuming tbat it meant more than it said, since tbe bearing and determination of a demurrer is a thing entirely apart from tbe filing of an .answer or amendment thereto, and, indeed, from tbe exigencies wbicb may be created by passing upon tbe demurrer.

*412Section 515 is not the only law regulating the procedure with regard to demurrers to complaints. C. S., 509 — embodying the amendment made by chapter 66, Public Laws of 1927, section 4, and with respect to the point under consideration a later enacted statute — provides as follows : “509. Demurrer and answer. The defendant must appear and demur or answer within thirty (30) days after the service of summons upon him, or within thirty (30) days after the final determination of a motion to remove as a matter of right, or after the final determination of a motion to dismiss upon a special appearance, or after the final determination of any other motion required to be made prior to the filing of the answer, or after final judgment overruling demurrer, or after the final determination of a motion to set aside a judgment by default under C. S., section six hundred, or to set aside a judgment under C. S., section four hundred and ninety-two. . . .”

It will be seen that C. S., 515, is repugnant to this statute, at least with respect to the filing of an answer after an unsuccessful demurrer to the complaint.

There is every evidence in the statute itself, and in the history of the various amendments relating to civil procedure, which we partially note, that this provision of section 515 was intended only to bring the hearing and determination of demurrers to the answer within the rule which had been recently provided for the hearing and determination of demurrers to the complaint.

Under the Revisal (1908), section 485, we find no such provision, since demurrer and answer were at that time treated in the same way. Under the Revisal, section 473, the defendant was required to appear and answer or demur at the term to which the summons was returnable. Under the Revisal, section 484, it was required that “the plaintiff shall join issue on the demurrer or reply to the answer at the same term to which such demurrer or answer may be filed; and the issue, whether that of law or fact, shall stand for trial at the term succeeding the term at which the pleadings were completed.”

Under C. S., 513, and amendments, after pleadings were again required to be filed with the clerk, it is provided that when a demurrer to the complaint is filed the plaintiff may be allowed to amend, but if he fail to do so within five days after notice the parties may agree upon a time and place for the hearing before a competent judge, and in case no agreement shall be made it becomes the duty of the clerk to send up the complaint and demurrer to the judge holding the next term of the Superior Court in the county where the action is pending. C. S., 513.

Under the old practice (C. C. P., section 111), the clerk was required to send the pleading within ten days to the judge of the court for hearing and determination. Thus it will be seen that the 1919 statute provided a method for the hearing and determination of a demurrer to the com*413plaint entirely different from that under the Revisal or under the original C. C. P. See C. C. P., section 105. As stated, these provisions apply to demurrers to the complaint only, and it was necessary to correlate the practice in case of a demurrer to the answer to these provisions. This we consider to be the function of the provision in C. S., 525, above quoted, which has been cited to us.

We do not consider any other reasoning necessary to support our conclusion. It might be observed, however, that the plaintiff invokes the jurisdiction of the court at his own will, while the defendant may be considered as being brought there in *invitum.*This may account for the fact that more latitude is given to the person who is on defense.

The construction we have put upon this law is in full accord with the authorities, which hold that the liberality of our present practice is inspired by a desire to promote justice rather than defeat it by an insistence on a technical construction. *Brewer v. Ring and Valk,*177 N. C., 476, 99 S. E., 358; *Deligny v. Furniture Co.,*170 N. C., 189, 86 S. E., 980; *R. R. v. King,*125 N. C., 454, 34 S. E., 541; *Swain v. Burden,*124 N. C., 16, 32 S. E., 319; also cases above cited. So anxious is the law that justice prevail that it permits the court, in some instances, to amend pleadings even after judgment. C. S., 547.

The matter of procedure is of the gravest importance in the judicial system, since it provides, in large part, the instrumentalities by which the ends of justice may be reached, and, in fact, institutes an exclusive method by which decision may be approached. The Court will not impose limitations on the liberal practice provided for this purpose in our civil procedure unless the authority is plainly declared in the law, or appears therefrom by clear inference.

It may not be necessary to advert to the argument made here by defendant’s counsel to the effect that a judgment of another state may be enforced in this State notwithstanding section 2144, in which, after denouncing certain sorts of gambling contracts (which defendant seeks to prove were the bases of the foreign judgment), the statute proceeds: . . nor shall the courts of this State have any jurisdiction to entertain any suit or action brought upon a judgment based upon any such contract.” At present, we do not see that the proposed amendment can be resisted on that ground. Since the court refused, as a matter of law, to permit any amendment, the sufficiency of the matter intended to be pleaded is not before us now.

We are of the opinion that the court below had the power to entertain defendant’s motion to amend his pleading so as to properly set up the defense which he proposes, and the refusal of the court to do so as a matter of law was error.

Reversed.

*414Devin, J.,

dissenting: In the former opinion in this case reported in 216 N. C., 391, it was held that the allegations in defendant’s answer, .attempting to set up an affirmative defense under C. S., 2144, were insufficient to constitute a valid defense to the action based upon plaintiff’s judgment, and that the plaintiff’s demurrer thereto should have been sustained. This Court disposed of the matter in these words: “The court below should have sustained the demurrer to the defendant’s further defense under C. S., 2144, with right to move for leave to amend in accordance with the provisions of C. S., 515.”

It would seem that this Court, in the exercise of its supervisory power over proceedings in the Superior Court, has confined defendant’s procedure for the amendment of his pleadings to that prescribed in C. S., 515. 'With this the defendant has failed to do, as the court below has found. Upon that finding the court denied defendant’s right to amend. The letter of plaintiff’s counsel, relied on as a waiver, related to the time for arguing the motion and was written after the time limited for filing amendment had expired. There was no petition to rehear the former opinion. The able and accurate judge of the Superior Court rightly interpreted the former decision of this Court as constituting the law of the case, and binding both upon the court and upon the litigants. The procedure prescribed in the former opinion in this case is in accord with the language of this Court in disposing of numerous decided cases. *White v. Charlotte,*207 N. C., 721, 178 S. E., 219; *McKeel v. Latham,*202 N. C., 318, 162 S. E., 747; *Morris v. Cleve,*197 N. C., 253, 148 S. E., 253; *Scott v. Harrison, ante,*319; *Johnston County v. Stewart, ante,*334. In these cases procedure under C. S., 515, was specifically indicated. In the *Morris case, supra, Connor, J.,*speaking for the Court, referring to C. S., 515, said: “This statute is in aid of an expeditious administration of justice and should be liberally construed and applied.”

It is immaterial that the demurrer here considered was interposed by the plaintiff to an affirmative defense in the answer, rather than by a defendant to a complaint. By statute and in the decisions of this Court both are treated as governed by the same principle.

If the former opinion of the Court had not limited defendant’s procedure for amendment, I agree that the Superior Court would have had ample power, both inherently as well as by virtue of other applicable statutes, to allow amendments. But that was not the question before the trial judge. He was confronted with the language of this Court. Did he err in ruling in accordance with it? I do not think so.

Nor do I agree with the suggestion in the majority opinion that the proposed amendment to defendant’s answer could “not be resisted.” The amendment has not been filed, and an expression as to the sufficiency of what counsel informally proposed would seem to be, at this time, out of place.

*415In this connection it may not be improper to suggest that a change in our rules of procedure, in conformity with the practice in the Federal Courts wherein demurrers as a distinct form of pleading have been abolished and motions in the cause substituted, would eliminate a frequent occasion for delay in the trial of cases, and render obsolete much of the technicality and refinement which has grown up in our law with regard to demurrers.