Hardin v. . Greene , 164 N.C. 99 ( 1913 )

ALLEN, J., dissenting. 1. In what amount, if any, is the defendant Mattie J. Greene, administratrix, indebted to the plaintiff H. J. Hardin? Answer: $2,000, with interest on $1,500 from 4 August, 1902.

2. In what amount, if anything, is defendant M. J. Greene, administratrix, indebted to plaintiff A. W. Beach, administrator? Answer: $479.63, with interest from 2 May, 1892.

3. In what amount, if anything, is defendant M. J. Greene, administratrix, indebted to plaintiff M. N. Horton, administrator? Answer: Nothing.

4. Is the debt of the plaintiff H. J. Hardin barred by the statute of limitations? Answer: No.

5. Is the debt of M. N. Horton, administrator, barred by the statute of limitations? Answer: No.

(100) From the judgment rendered, the defendant appealed. This is an action in the nature of a creditor's bill, brought to collect certain judgments set out in the record against the defendant's intestate in favor of H. J. Hardin, and A. W. Beach, administrator of John Ragan.

The assignments of error relate largely to the statute of limitations.

The judgment upon which plaintiff Hardin sues was rendered Fall Term, 1902, upon a number of small judgments against L. L. Greene in favor of W. T. Hayes and others. It is admitted that the judgment was duly assigned to plaintiff Hardin.

As the summons in this action was issued on 27 June, 1910, less than eight years have elapsed from the time of the rendition of the judgment until this action was commenced. We are unable, therefore, to see anything upon which to found the plea of the statute as to that judgment.

It is immaterial whether the small judgments upon which this judgment was rendered at Fall Term, 1902, were barred or not. The statute should have been pleaded as to them in that action. The matters determined by the judgment at Fall Term, 1902, cannot now be considered They are foreclosed by that decree.

We find no error as to the rulings of the court in respect to the Hardin judgment, and the judgment of the court in that particular is affirmed.

The defendant assigns error for that his Honor signed the order striking out defendants' amended answer in so far as it affected the plaintiff A. W. Beach, administrator. The order is as follows:

This cause coming on for trial, and the defendants, in answer to the complaint, read an amended answer setting up the statute of limitations, which was filed at Fall Term, 1912, under an order made by his Honor, Judge Biggs, at Fall Term, 1911, permitting the defendants to file an amended answer, and it appearing to the court that in (101) the original answer no plea of the statute of limitations has been pleaded, and at the time of making the said order there was no suggestion made that it was the purpose of the defendants to set up such plea in the amended answer authorized by said order, and it appearing to the court that neither the interpleader, A. W. Beach, nor his attorney, had notice that such plea was to be pleaded and set up until the pleadings were read at this term:

It is, therefore, on motion of E. F. Lovill, attorney for the interpleader, ordered by the court that such plea of the statute of limitations, so far as said plea would affect the interpleader, be stricken out, and to which said order the defendant excepted.

F. A. DANIELS, Judge Presiding.

There was error in making this order. An unconditional and unrestricted right to file an amended answer had been granted by Judge Biggs, and the amended answer filed in pursuance of such order.

Judge Biggs had plenary power to make such order, and his successor at a subsequent term had no right to set it aside because in such amended answer the defendant set up the statute of limitations. Such plea is not immoral, and under the terms of the order the defendant has as much right to set it up as any other plea. Smith v. Smith, 123 N.C. 233; Wilson v. Pearson,102 N.C. 306.

So much of the judgment as relates to the cause of action of Beach, administrator of Ragan, is set aside.

The costs of this appeal will be paid by A. W. Beach, administrator of John Ragan.

Partial new trial.