Oliver v. United States Fidelity & Guaranty Co.

• Decision Date: 31 October 1917
• Docket Number: 301.
• Citation: 93 S.E. 948,174 N.C. 417
• Parties: OLIVER ET AL. v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.
• Court: North Carolina Supreme Court

93 S.E. 948

174 N.C. 417

OLIVER ET AL. v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.

No. 301.

Supreme Court of North Carolina

October 31, 1917

Appeal from Superior Court, Cumberland County; Connor, Judge.

Action by the State, on the relation of Mattie L. Anderson Oliver and her husband, J. H. Oliver, against the United States Fidelity Company and E. E. Gorham, administrator of the estate of John C. Gorham, deceased. Judgment for plaintiffs and the Fidelity Company appealed. New trial granted.

The action was instituted to recover on a guardian bond, executed by John C. Gorham and the Fidelity Company as surety, to recover an amount alleged to be due the ward, feme plaintiff. On denial of liability and plea of statute of limitations the jury rendered the following verdict:

"(1) Is plaintiff's cause of action barred by the statute of limitations? Answer: No.

(2) What amount is plaintiff entitled to receive of defendants? Answer: $7,610.12, with interest from June 5, 1904."

Judgment on the verdict for plaintiff, and defendant the Surety Company, excepted and appealed.

E. G Davis, of Fayetteville, for appellant.

Sinclair Dye & Ray, of Fayetteville, for appellees.

HOKE J.

On the hearing there was evidence tending to show that in December, 1904, John C. Gorham, intestate, qualified as guardian of feme plaintiff and gave bond, with defendant company, a foreign corporation, as surety; that on November 9, 1906, said guardian filed an annual account showing receipt of guardianship funds with a balance then due of $1,464.23, and that no other account was ever filed by him; that during his guardianship he received other funds belonging to his ward for which he has failed to account and died on February 28, 1910, owing said ward a balance of $7,610.12, with interest, etc.; that, soon after his death, defendant E. E. Gorham qualified as his administrator, and judgment for said amount has been duly entered against him; that the ward became of age on April 25, 1911, and two years thereafter she, through her attorneys, demanded an accounting and settlement of the defendant company of all amounts due by reason of said guardianship; that some time thereafter, precise date not given, she intermarried with coplaintiff, and on January 12, 1917, instituted the present action. It was further shown that Q. K. Nimocks, resident in Fayetteville, N. C., was general agent of defendant bonding company in Cumberland and several other counties, and has been such since the company began business in the state in 1896; that he is general agent for the company for executing their judicial bonds, collects premiums on such bonds written by him, and has done so since he has served as general agent, etc.

Upon these, the facts chiefly relevant, his honor, in effect, instructed the jury that, if they believed the evidence, they would answer the issue as to statute of limitations "No," and in this we think there was error which entitles appellant to a new trial. The guardian having filed no final account, the statute of limitations applicable is three years from the time of default, and, at furthest, within three years from the ward's coming of age. Self v. Shugart, 135 N.C. p. 185, 47 S.E. 484; Revisal, § 395, subsec. 6. This being true, on the facts in evidence, plaintiff's cause of action is clearly barred, unless it is preserved by reason of section 366 of the Revisal, which suspends the running of the statute in certain cases on account of absence from the state, and this in the present instance because of the fact that defendant is a foreign corporation.

Considering the case in that aspect, under the decision in Volivar v Cedar Works, 152 N.C. p. 656, 68 S.E. 200, 21 Ann. Cas. 623, opinion by Associate Justice Brown, it is established with us that, where a foreign corporation has complied with provision of our statute (Revisal, § 1243) by maintaining an agent in the state upon whom valid service of process may be had, our statute of limitations is available for its protection as in case of citizens and residents within the state. And a perusal of this well-considered decision and others to like purport will show that the principle is not restricted to cases where there has been formal compliance with the statutory requirements for domesticating these corporations and the appointment of process agents, but it...