The case appeared upon the record to be this: At February Sessions, 1845, the county court of Lincoln, on affidavits filed by the plaintiff, *Page 156 made a rule upon the defendants to show cause at the next term why the record in a suit between the same parties, made at June Term, 1842, should not be amended in the manner stated in the said rule. The defendants, on the return of the rule, appeared and filed counter affidavits and resisted the motion. The county court, on hearing the affidavits and proofs in writing made in the cause, made an order to amend the record as prayed for by the plaintiff. The defendants appealed from this order to the Superior Court. The transcript of the record of this rule, and copies of all the affidavits and proofs in the case, were sent up to the Superior Court. The judge, on the case being there called, dismissed the appeal without deciding upon the questions of fact or law made by the case and sent to him for his determination. From this judgment the plaintiff appealed. There is no doubt that such an order is the subject of an appeal from the county to the Superior Court. It is true that (208) when a record is once amended by an order of the same court made at any subsequent term it cannot afterwards ever be called in question; for the record then appears on its face as if it had always been perfect; and then it cannot be contradicted. But when an order is made by the county court to amend the record of its proceedings at any antecedent term, such order may be appealed from, and the appeal instantly vacates the order; and the record sought to be amended remains in statu quo and without amendment. From the sentence, judgment, or decree of any county court the party dissatisfied may appeal. Rev. Stat., ch. 4, sec. 1. We think the judge ought not, therefore, to have dismissed the appeal, but should have decided the question of amendment. Although this Court cannot review the decision of the Superior Court upon the question of amendment, either in refusing or allowing it, because it is a matter of discretion upon evidence, yet the Superior Court can review the decision of the county court, and, to that end, hear further evidence; and the appellant had a right to the judge's opinion as to the propriety of the order of the county court, and therefore, it was error to refuse to entertain the appeal.Dickinson v. Lippet, 27 N.C. 560. If he had been in favor of the plaintiff, he should have affirmed the order and issued a writ ofprocedendo; if he had been against the order, he should have reversed it and given the defendants judgment for costs.
The judgment dismissing the appeal must be
PER CURIAM. Reversed.
Cited: Williams v. Beasley, 35 N.C. 113. *Page 157
(209)