Revis v. Ramsey
| Decision Date | 15 June 1932 |
| Docket Number | 612. |
| Citation | 164 S.E. 358,202 N.C. 815 |
| Parties | REVIS v. RAMSEY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Madison County; Sink, Judge.
Action by Elberta Revis against Hannah Ramsey, administratrix, and another. From the judgment for defendants, plaintiff appeals.
Appeal dismissed.
Res judicata does not extend to ordinary motions incidental to progress of cause, but only to those involving substantial rights.
Civil action to recover on a promissory note for $700, dated February 22, 1916, due December 1, 1916, under seal, and ostensibly signed by Caney Ramsey and Z. Ponder as makers.
The defendant Z. Ponder, in his original answer, denied executing the note and pleaded the three, seven, and ten years' statute of limitations.
When the case was called for trial at the October term, 1931 Stack, J., presiding, "the defendant, in open court asked for permission to amend his answer so as to set up the statute of limitations and the court, in its discretion denies the motion, and the defendant excepts."
There was a verdict, at said term, finding that plaintiff's claim was barred by the statute of limitations as to the defendant Z. Ponder. This was set aside, in the discretion of the court, as contrary to the weight of the evidence. Welch v. Huske Hardware House, 202 N.C. 641, 163 S.E. 679; Goodman v. Goodman, 201 N.C. 808, 161 S.E 686; Goodman v. Goodman, 201 N.C. 794, 161 S.E. 688.
Thereafter, at the February term, 1932, Sink, J., presiding, the defendant Z. Ponder asked to be permitted to amend his answer and set up that he signed said note as surety only, and to plead the three years' statute of limitations; no payments having been made thereon within three years next preceding the filing of plaintiff's complaint. Motion allowed, and plaintiff appeals.
John A. Hendricks, of Marshall, for appellent.
John H. McElroy, of Marshall, and Carter & Carter, of Asheville, for appellee Ponder.
The plaintiff contends that as the application of the defendant Z. Ponder to amend his answer so as to plead the statute of limitations was denied by Stack, J., at the October term 1931, Sink, J., was without authority at the February term, 1932, to hear a renewal of the same motion and to allow it, upon the theory that the matter was then res judicata and no appeal lies from one superior court judge to another. Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434; Phillips v. Ray, 190 N.C. 152, 129 S.E. 177; Dockery v. Fairbanks-Morse Co., 172 N.C. 529, 90 S.E. 501; May v. Stimson Lbr. Co., 119 N.C. 96, 25 S.E. 721; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130; Roulhac v. Brown, 87 N.C. 1; State v. Evans, ...
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