Rankin v. Oates

• Citation: 112 S.E. 32,183 N.C. 517
• Decision Date: 17 May 1922
• Docket Number: 446.
• Parties: RANKIN v. OATES.
• Court: United States State Supreme Court of North Carolina

112 S.E. 32

183 N.C. 517

RANKIN v. OATES.

No. 446.

Supreme Court of North Carolina

May 17, 1922

Appeal from Superior Court, Gaston County; Ray, Judge.

Action by John C. Rankin against R. M. Oates. From a judgment for defendant taxing plaintiff with costs, both parties appeal. Affirmed on both appeals.

Clark C.J., dissenting.

Civil action to recover damages for an alleged wrongful conversion of plaintiff's automobile.

Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Did the defendant wrongfully convert to his own use the property of the plaintiff as alleged in the complaint? Ans. Yes.

(2) Is the plaintiff's cause of action barred by the statute of limitations? Ans. No.

(3) What damages is the plaintiff entitled to recover by reason of the conversion of said car? Ans. $1,875.00."

After the rendition of the verdict, his honor set aside the jury's finding as to the bar of the statute of limitations, answered the second issue in the affirmative, as a matter of law, and thereupon rendered judgment for the defendant, dismissing the action and taxing the plaintiff with the costs. Both sides appealed.

Mangum & Denny, of Gastonia, for plaintiff.

Michael Schenck, of Hendersonville, and Carpenter & Carpenter, of Gastonia, for defendant.

STACY J.

The court was without authority to reverse the jury's finding on the second issue, answer it himself, and then render judgment on the verdict as amended. Garland v Arrowood, 177 N.C. 373, 99 S.E. 100; Sprinkle v. Wellborn, 140 N.C. 163, 52 S.E. 666, 3 L. R. A. (N. S.) 174, 111 Am. St. Rep. 827; Hemphill v. Hemphill, 99 N.C. 436, 6 S.E. 201. And it has been held that, after verdict, the same may be set aside and the plaintiff's suit dismissed by the trial court only for want of jurisdiction, or upon the ground that no cause of action is stated in the complaint. Riley v. Stone, 169 N.C. 422, 86 S.E. 348. A different course seems to have been pursued in Davis v. Railroad, 170 N.C. 582, 87 S.E. 745, Ann. Cas. 1918A, 861, but there the question of procedure apparently was not presented for consideration.

Of course, his honor could have set the verdict aside, as a matter of law, or in his discretion; and, in either event, the cause would then have stood upon the docket for a new trial. C. S. § 591. When a verdict is set aside, as a matter of law, the losing party may appeal, and the action of the court, in this respect, is subject to review. Powers v. Wilmington, 177 N.C. 361, 99 S.E. 102. But the rule is otherwise when the judge acts in his discretion, unless this discretion has been grossly abused and resulted in oppression, which is not likely to occur in any case. Settee v. Electric Co., 170 N.C. 367, 86 S.E. 1050.

But we are of opinion that the court should have directed a verdict against the plaintiff on the second issue. The defendant having set up the plea of the statute of limitations as a bar to the plaintiff's right to recover, the burden was on the plaintiff to show that his suit was brought within 3 years from the time of the accrual of the cause of action, or that otherwise it was not barred. This has been the prevailing rule with us as to the burden of proof where the statute of limitations is properly pleaded. Tillery v. Lumber Co., 172 N.C. 296, 90 S.E. 196, and cases there cited.

Admittedly, the plaintiff's alleged cause of action accrued on or about the 2d day of May, 1914. The present suit was instituted in the superior court of Gaston county, September 6, 1917, 3 years 4 months and 4 days after the alleged conversion. This was too late unless the plaintiff has otherwise saved himself from the running of the statute.

To meet this situation, the plaintiff offered evidence tending to show that a former suit, to recover the automobile in question, was commenced in Henderson county on the 25th day of May, 1914, and that said suit remained upon the superior court docket of said county until the May term, 1917, when a voluntary nonsuit was taken therein. Plaintiff contends that, under C. S. § 415, he is entitled to bring a second action at any time within one year after the judgment of nonsuit in the original cause. This is so, provided "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." It is admitted that the original suit here was not brought in forma pauperis, and that the costs of said action were not paid by the plaintiff until September 14, 1921, 4 years and 8 days after the commencement of the new suit.

It was held in Bradshaw v. Bank, 172 N.C. 632, 90 S.E. 789, that the proviso in this statute does not forbid the plaintiff's bringing a second action without paying the costs of the first, when not otherwise barred by the statute of limitations, but that it does annex such "as a condition to bringing the new action free from the bar of the statute, if pleaded." That is to say, if both suits are brought within 3 years from the date of accrual of the plaintiff's cause of action, the failure to pay the costs in the original suit will not bar the plaintiff's right to proceed in the second action. But where the pendency of the first suit and the right to bring another within a year after its dismissal is relied upon to repel the plea of the statute of limitations, the plaintiff is required to pay the costs in the original action before the commencement of the new suit, unless the first suit was brought in forma pauperis. This is the plain meaning of the words used in the statute, and we are not at liberty to disregard its provisions. Summers v. Railroad, 173 N.C. 398, 92 S.E. 160.

The correct result has been accomplished by the judgment entered below, though irregularly rendered; and, as no harm can come from letting it stand, we shall affirm it. Earnhardt v. Com'rs, 157 N.C. 234, 72 S.E. 864; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091. Upon the uncontroverted facts, the plaintiff is not entitled to recover, and any error, committed on the trial, was harmless. Cherry v. Canal Co., 140 N.C. 426, 53 S.E. 138, 111 Am. St. Rep. 850, 6 Ann. Cas. 143. "A new trial will not be granted when the action of the trial judge, even if erroneous, could by no possibility injure the appellant." Butts v. Screws, 95 N.C. 215. The judgment, dismissing the action, will be upheld.

On both appeals, judgment affirmed.

CLARK C.J. (dissenting).

This was an action for the alleged wrongful conversion of plaintiff's automobile. Upon the issues submitted, the jury found the first issue in favor of the plaintiff and in response to the third issue assessed his damages at $1,875, and answered the second issue, "Is the plaintiff's cause of action barred by the statute of limitations?" in the negative.

After the rendition of the verdict, the court set aside the jury's finding as to the bar of the statute of limitations, and himself answered that issue in the affirmative as a matter of law, and rendered judgment in favor of the defendant, dismissing the action and taxing the plaintiff with the costs. This, as stated in the court's opinion, was error. It was more. It was a void judgment.

The plaintiff's cause of action accrued on May 2, 1914, and an action to recover the automobile in question was commenced in the superior court of Henderson on May 25, 1914, and remained upon its docket until May term, 1917, when a voluntary nonsuit was taken. This action was begun in Gaston county September 6, 1917, less than 4 months thereafter. Under C. S. § 415, the plaintiff was entitled to bring another action at any time within one year after such nonsuit was entered. That section, it is true, provides that the party in interest may commence a new action within 1 year after a nonsuit, reversal, or arrested 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." This last sentence shows that it was not intended as a statute of limitations, but merely to secure the costs of the officers in the first case. This is of the same purport as the provision that the clerk shall require a prosecution bond, or deposit, or leave to sue as a pauper before issuing a summons only it is less imperative. In neither case does the statute of limitations run if this is not done. In both cases, if objection is made, the judge can allow the defect to be supplied by filing the bond or making the deposit, or in this case paying the costs, or if he dismisses the case a new action can be brought. The statute does not run, since in both cases the summons was issued and the action was actually pending.

There are numerous analogous cases which show that this is the reasonable intent and meaning of this provision. C. S. § 493 is far more peremptory. It provides:

"Before issuing the summons the clerk shall require the plaintiff to do one of the following: (1) Give an undertaking with sufficient surety in the sum of two hundred dollars, with the condition that it will be void if the plaintiff pays the defendant all costs which the latter recovers of him in the action;" or (2) make a deposit of that amount; or (3) obtain authority to sue as a pauper."

This is a requirement that one of these shall be done "before the clerk is authorized to issue the summons." Yet it has always been held that though the clerk fails to require any one of these three things to be done, the summons is not void, but the action can be maintained, and the court can permit the bond to be filed or either of these requirements to be complied with after the writ is returned. Shennonhouse v. Withers, 121 N.C. 380, 28 S.E. 522; Cooper v. Warlick, 109 N.C. 673, 14 S.E....