
    DOBSON v. SOUTHERN RAILWAY CO.
    (Filed December 10, 1901.)
    1. PARTIES — Who to he Plaintiffs — Amendment—The Code, Secs. 183, 273.
    
    The trial judge may allow proper parties to be made to- an action already pending.
    2. PLEADINGS — Amendment—Issues of Fact — When to he Tried— The Code, Sec. 400 — Continuance.
    Where an amendment creates a right in the adverse party to be allowed to make corresponding amendments, the disallowance of such right is reviewable error.
    3. CONTINUANCES — Amendments—Answer—Complaint—Pleadings —Issues of Fact — The Code, Sec. 400.
    
    Where, at trial term, an amended answer to an amended complaint raises additional issues of fact, the defendant is entitled to a continuance.
    4. REMOVAL OF CAUSES — Domestic Corporations — Foreign Corporations — Parties.
    Where a part of the plaintiffs are citizens of this state and the' defendant is a domestic corporation, or part of the plaintiffs are foreign corporations and the defendant is a foreign corporation, the defendant is not entitled to remove to the Federal Court.
    ActioN by Dobson & Wbitley and others against the Southern Railway Company, heard by Judge M. H. Justice and a jury, at August Term, 1901, of the Superior Court of McDowell County. From a judgment for the plaintiffs, the defendant appealed.
    
      Busbee & Busbee, and Justice & Pless, for the plaintiffs-
    
      George F. Bason, for the defendant.
   Fueches, C. J.

Tbe plaintiffs, Dobson & Whitley, on or before the 12th day of August, 1900, were the owners of a grist mill in the county of McDowell, and on that day it was destroyed by fire. They had insured this property in three different companies to the amount of $1,800, which amount was paid them by said insurance companies. The plaintiffs, Dobson & Whitley, commenced this action against the defendant on the 1st day of December, 1900, and in their complaint, filed at Sjnfing Term, 1901 (May 15, 1901), they allege that said property was burned by the negligence of the defendant, and that they were thereby damaged to the amount of $1,995.

At the same term the defendant answered the complaint, denying that it burnt the mill, of that it was negligent, or that it was liable to the plaintiffs in damages for the loss of their property. But the defendant ■ did not .deny the fifth article of the plaintiff’s complaint, which fixed the amount of the damages at $1,995.

The case as thus constituted stood for trial at August Term of the Court, and at August Term, upon the motion of the three insurance companies who had paid the plaintiffs the $1,800 insurance money, they were allowed to make themselves parties plaintiff; to amend the complaint; and to allege that the plaintiffs Dobson & Whitley had been damaged $4,900.

The defendant objected to the order of the Court allowing new parties; to the amendments to the complaint; and especially to the increased damages., But, defendant’s objection being overruled, it excepted .and answered, denying all the allegations in the amended complaint, and insisted that as the amended pleadings had materially changed the status of the case, it was not ready for trial, and asked that the case be continued; that while it had denied the plaintiff’s right to recover, it had never denied but what if plaintiffs were entitled to recover anything, they were entitled to recover $1,995, as defendant thought plaintiffs property destroyed by the fire was worth that amount, but it did deny that it was worth $4,900. And relying on the amount claimed in the complaint as being the extent of plaintiffs’ rights to recover, it had summoned no witnesses as to damages, and was not prepared to try that issue. But the Court overruled the defendant’s motion to continue the case, and proceeded with the trial, and defendant excepted, and, upon a verdict and judgment against the defendant for $3,500, appealed to this Court.

The Court has the right to allow parties to be made to an action already pending, and it seems to us that this was a proper case to allow them to be made. The Code, sec. 183; Isler v. Koonce, 83 N. C., 55; Clark’s Code, 273. The Court also has the right to allow the pleadings to be amended, when the amendments do not constitute a new cause of complaint. But this does not reach the merits of defendant’s objections.

The defendant had not denied that the plaintiffs had been damaged to the amount of $1,995 by the fire. But it did deny that plaintiffs had been damaged $4,900, and it had a right to make this denial by filing an amended answer. And if it had not been allowed to do SO', it would have been such error as would have been reviewed and corrected on appeal to this Court. Brooks v. Brooks, 90 N. C., 142. In such cases the defendant is entitled to a continuance. Sams v. Price, 119 N. C., 572. To say that because the defendant was allowed to answer, is an answer to what is said in Brooks v. Brooks, would be to “stick in the bark,” and to ignore the principles of justice and fair dealing upon which it is based. It could do the defendant no good to allow it to' answer and deny the new allegations in the amended complaint, and force it into trial at once, without time to get its evidence to sustain its denial.

There was no issue raised by the original pleadings as to tbe amount of damage. Tbe plaintiff alleged it to be $1,995, and tbe defendant, by not answering tb’is paragraph of tbe complaint, admitted its truth. Tbe first time there was any issue raised by tbe pleadings, as to the amount of damage, was by tbe amended complaint at August Term, when it was alleged that tbe damage was $4,900, and tbe defendant’s amended answer denied this allegation. This issue was then joined for tbe first time, and section 400 of Tbe Code provides that “issues of fact joined on tbe pleadings, and inquiries of damages required to be tried by tbe jury, shall be tried at tbe term, of tbe Court next ensuing such joinder of issues.” This statute, in connection with tbe cases cited, we think clearly settles the matter, and tbe defendant was entitled, 'as a matter of right, to a continuance.

As there is error, as already pointed out, for which there must be a new trial, we will not enter upon tbe consideration of tbe alleged errors in the Judge’s charge, nor as to tbe evidence, as they will likely not be presented on another trial.

But as h> tbe other question — the light to remove to tbe Eederal Court, lies in limine, we think it best to discuss and decide it. And we do not think the defendant’s claim to this right can be maintained. It is true, the defendant did not have this right under tbe original complaint, for tbe reason that tbe amount of damages claimed was less than $2,000; and if tbe amendment bad been to allow tbe original plaintiffs to increase tbe amount of damages to $4,900, it would have been a legal fraud on tbe jurisdiction of tbe Eederal Court to have allowed tbe amendment. But tbe case now stands as if the insurance companies bad been original parties; and this being so, tbe defendant would have bad no right to remove tbe case, and has none now, whether tbe defendant is treated as a domestic corporation under tbe act of 1899, or as a foreign corporation. If it is a domestic corporation, a part of tbe plaintiffs are citizens of this State. If it is a foreign corporation, a part of the plaintiffs are foreign corporations. So', in neither view, has the defendant the right to have the case removed.

But for the error pointed out above there must be a new trial.

New Trial.  