Irvin v. Harris

• Decision Date: 20 December 1922
• Docket Number: 353.
• Citation: 114 S.E. 818,184 N.C. 547
• Parties: IRVIN ET AL. v. HARRIS ET AL.
• Court: North Carolina Supreme Court

114 S.E. 818

184 N.C. 547

IRVIN ET AL. v. HARRIS ET AL.

No. 353.

Supreme Court of North Carolina

December 20, 1922

Appeal from Superior Court, Rockingham County.

On petition to rehear. Petition allowed.

For former opinion, see 182 N.C. 656, 109 S.E. 871.

J. I Scales, of Greensboro, J. M. Sharp, of Reidsville, and H. W Cobb, Jr., and Fentress & Jerome, all of Greensboro, for appellants.

P. T Stiers, of Reidsville, for A. R. Troxler.

Humphreys & Gwyn, of Reidsville, for Pattie E. and Pattie J. King.

ADAMS J.

The question presented for decision in the petition for a rehearing involves the construction of the following statute:

"If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives after the expiration of that time, and within one year from his death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person. If the claim upon which the cause of action is based is filed with the personal representative within the time above specified, and admitted by him, it is not necessary to bring an action upon such claim to prevent the bar, but no action shall be brought against the personal representative upon such claim after his final settlement." C. S. § 412.

On behalf of the creditors it is insisted that the legal effect of this provision is to suspend the statute of limitations as to their several claims during the period that intervened between the death of the debtor and the qualification of his personal representative, and that such intervening period should not be considered in computing the statutory bar.

We cannot concur in this conclusion, although apparently it finds support in some of the decisions. "When the statute of limitations has once begun to run, nothing stops it; but the Code does not stop when the cause of action is one which must be brought by or against a personal representative. * * * If a person against whom an action may be brought die before the expiration of the time...