Fowler v. Murdock

• Decision Date: 01 November 1916
• Docket Number: (No. 333.)
• Citation: 90 S.E. 301
• Parties: FOWLER. v. MURDOCK et al.
• Court: North Carolina Supreme Court

(172 N.C. 349)

90 S.E. 301

FOWLER.

v.MURDOCK et al.

(No. 333.)

Supreme Court of North Carolina.

Nov. 1, 1916.

Appeal from Superior Court, Durham County; Devin, Judge.

Action by P. E. Fowler against A. A. Murdock and others. Judgment for defendants dismissing the action, and the plaintiff appeals. Error and cause remanded, with instructions to enter judgment for plaintiff.

This is a civil action, with ancillary proceeding of claim and delivery, to recover a horse, tried upon these issues:

(1) Is the plaintiff the owner and entitled to the possession of the horse described in the claim and delivery proceedings in this action? Answer: Yes.

(2) What amount, if any, is the plaintiff entitled to recover by reason of the wrongful detention of the horse? Answer: None.

(3) Is plaintiff's action barred by statute of limitations? Answer: No.

The court signed judgment for plaintiff for the recovery of the horse, but during the term set aside the judgment and ex mero motu continued the motion for judgment until a succeeding term. The court did not set aside the verdict of the jury, but at May term rendered a judgment for defendant dismissing the action. The plaintiff appealed.

L. L. Tilley, of Durham, and J. G. Mills, of Wake Forest, for appellant.

Scarlett & Scarlett, of Durham, for appellees.

BROWN, J. The judgment of the court contains this statement:

"The jury having in their verdict answered the issue in favor of the plaintiff, as shown by the record, and the court being of the opinion that upon the testimony and the admissions of the plaintiff, his cause of action has been barred by the statute of limitations, it is ordered and adjudged that the plaintiff take nothing, " etc.

The judge did not set aside the verdict in his discretion at the term when rendered, is he had a right to do, but at a subsequent term rendered a judgment non obstante veredicto for defendants. In this there was error.

At common law such judgment was never rendered for the defendant. Under the Code system of pleading such judgment may be rendered for either party, but only when the pleadings entitle the party against whom the verdict was rendered to a judgment. Shives v. Cotton Mill, 151 N. C. 291, 66 S. E. 141.

The plea of the statute of limitations usually presents a mixed question of law and fact. When the statute was pleaded the plaintiff had the right to offer evidence of facts tending to take the cause of action from under the bar of the statute. For instance, the plaintiff may be...