Sheppard v. Barrus Const. Co., 718SC276
| Citation | 181 S.E.2d 130,11 N.C.App. 358 |
| Decision Date | 26 May 1971 |
| Docket Number | No. 718SC276,718SC276 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | Bobby Ray SHERRARD v. BARRUS CONSTRUCTION COMPANY. |
Turner & Harrison by Fred W. Harrison, Kinston, for plaintiff appellant.
White, Allen, Hooten & Hines by John R. Hooten, Kinston, for defendant appellee.
The three-year statute of limitations (G.S. § 1--52) began to run against plaintiff's claim on 31 August 1965 when a next friend was appointed for the special purpose of instituting an action on the claim. Rowland v. Beauchamp, 253 N.C. 231, 116 S.E.2d 720 (1960). Once the statute of limitations begins to run against an action, it continues to run. Rowland v. Beauchamp, Supra. Unless saved by some statute or rule, plaintiff's claim is barred by the statute of limitations.
The question then arises, was plaintiff's claim saved by G.S. § 1--25 (formerly C.S. 415)? While this statute was repealed by the 1967 General Assembly when the Rules of Civil Procedure were enacted, repeal of the statute being effective on 1 January 1970, the effective date of the Rules of Civil Procedure, the statute and not the rules (particularly Rule 41) appears to be applicable to the instant case. The statute provided as follows:
If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, If the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis. (Emphasis added.)
We think the answer to the question stated is found in the case of Osborne v. Southern Railroad, 217 N.C. 263, 7 S.E.2d 500 (1940). Pertinent facts in that case are as follows: Plaintiff allegedly received personal injuries on 14 July 1934. Within three years thereafter, he instituted an action but on 17 August 1937 caused a judgment of voluntary nonsuit to be entered. On 6 October 1937, he instituted a new action and defendant pleaded the three-year statute of limitations. The transcript of record filed in the Supreme Court is silent as to whether the cost on the original action was paid before the commencement of the second action, as well as whether the original action was brought In forma pauperis. The plaintiff appealed from a judgment of nonsuit and in a Per curiam opinion, the Supreme Court said:
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