Jennings v. Morehead City

• Decision Date: 16 October 1946
• Docket Number: 310
• Parties: JENNINGS v. MOREHEAD CITY.
• Court: North Carolina Supreme Court

39 S.E.2d 610

226 N.C. 606

JENNINGS v. MOREHEAD CITY.

No. 310

Supreme Court of North Carolina

October 16, 1946

This was an action to recover on certain coupons which had been originally attached to municipal bonds issued by the defendant Morehead City.

These coupons, 30 in number, dated 1925, were due and payable April and October, 1932, and April, 1933. The bonds to which these coupons had been originally attached were No. 39, maturity date October, 1934; Nos. 43, 44 and 45, maturity date October, 1935; Nos. 49, 50 and 51, maturity date October 1936; and Nos. 55, 56 and 57, maturity date October, 1937.

Defendant pleaded the ten-year statute of limitations as a bar to recovery on these coupons, alleging 'that the plaintiff's claims have matured more than ten years next prior to the time of commencement of this action and are therefore barred under the provisions of section 1-46 of the General Statutes of North Carolina, and which bar this defendant pleads against the right of plaintiff to recover.'

Plaintiff testified he became the owner of the coupons sued on in 1932 that he at one time owned the bonds to which they had been attached and had sold them. It further appeared that in 1934 or 1935 the defendant Morehead City, finding itself unable by ordinary processes to discharge its obligation evidenced by its bonds, undertook to refinance its bonded indebtedness by calling in its outstanding bonds and issuing in substitution other bonds which it was able to finance; that this plan with the aid of a bond holders committee and the Local Government Commission was successfully consummated in 1938, and the original bonds were surrendered and cancelled; that at the time plaintiff had notice of the plan of defendant to refinance its obligation but declined to allow his coupons to be included, and demanded payment in full or credit on a street assessment, which was refused.

This action was begun January 14, 1946.

At the conclusion of plaintiff's evidence motion for judgment of nonsuit was allowed, and plaintiff appealed.

W. R Dalton, of Reidsville, for appellant.

Hamilton & McNeill, of Morehead City, and J. F. Duncan, of Beaufort, for appellee.

DEVIN Justice.

The judgment of nonsuit entered below was based on the ground that plaintiff's evidence showed the action was barred by the ten-year statute of limitations. Two questions are presented by the appeal: (1) Has defendant sufficiently alleged the bar of the statute of limitations? (2) If so, is action on the coupons offered in evidence barred by the statute?

1. While the defendant in pleading the ten-year statute of limitations as a bar to plaintiff's action refers to section 1-46 of the General Statutes, it will be noted that this section is the general statute relative to the periods prescribed for the commencement of actions other than for the recovery of real property, 'as set forth in this article,' and immediately following is the specific provision prescribing the period of ten years with respect to an action upon a sealed instrument, and the statute prescribing the period of ten years after the cause of action has accrued within which an action for relief not otherwise provided for must be commenced. G.S. ss 1-47(2), 1-56.

We think the defendant has sufficiently pleaded that plaintiff's cause of action accrued more than ten years before the commencement of his action, and that his action is barred by the statute of limitations.

2. The statute of limitations having been sufficiently...