Sayer v. Henderson
| Decision Date | 28 November 1945 |
| Docket Number | No. 526.,526. |
| Citation | 225 N.C. 642,35 S.E.2d 875 |
| Court | North Carolina Supreme Court |
| Parties | SAYER. v. HENDERSON et al. |
Appeal from Superior Court, Mecklenburg County; Richard D. Dixon, Special Judge.
Action by Florence Sayer against Robert B. Henderson, who died after institution of action before process was served on him, and Mamie B. Henderson on a note. From a judgment for plaintiff against Mamie B. Henderson for $2,440 with interest and costs, such defendant appeals. Affirmed.
This is a civil action brought in the Superior Court of Mecklenburg County, State of North Carolina, by Florence Sayer against Robert B. Henderson and Mamie B. Henderson. Robert B. Henderson died since the institution of this action but before process was served on him, and neither he nor his personal representative was ever made a party to this action. The action was for the recovery of an amount alleged to be due the plaintiff on a certain note executed under seal by the named defendants on 25 August, 1926.
When the case came on for trial the parties entered into a stipulation that the court might pass upon the facts as well as the law, and agreed upon the facts. Whereupon the court found the facts to be as agreed upon by the parties, and, upon these facts, concluded as a matter of law, that the plaintiff is entitled to recover of the defendant, Mamie B. Henderson, the sum of $2,440 with interest from October 1, 1933, the court finding, inter alia, as a matter of law, that the statutes of limitation of the State of North Carolina were applicable to the plaintiff's alleged cause of action rather than the statutes of limitation of the State of New York as contended by the appealing defendant, and that under the provisions of the applicable statute of limitation of the State of North Carolina, plaintiff's cause of action is not barred, and thereupon adjudged that the plaintiff have and recover of the defendant Mamie B. Henderson the sum of $2,440 together with interest from October 1, 1933, and costs. From such judgment the defendant Mamie B. Henderson appealed, assigning errors.
W. T. Shore and F. A. McCleneghan, both of Charlotte, for plaintiff, appellee.
Wilson H. Price, Sr., of Charlotte, for defendant Mamie B. Henderson, appellant.
The question posed, and upon which the case on this appeal is made to turn in the briefs filed, was: Are the statutes of limitation of the State of North Carolina or the statutes of limitation of the State of New York applicable in this action?
The only allegations made by the appealing defendant in her answer which can be construed as a plea of the statutes of limitation were as follows; and
The statutes of limitation have been...
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Stokes v. Southeast Hotel Properties
...of action. Smith, 571 F.Supp. at 435. That distinct rule was announced by the North Carolina Supreme Court in Sayer v. Henderson, 225 N.C. 642, 643, 35 S.E.2d 875 (1945), and states The statutes of limitation have been uniformly held by this Court, and so far as we know by other courts, to ......
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Merchants & Planters Nat. Bank of Sherman v. Appleyard
...Actions, § 28, p. 972; Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. --- (decided 18 May, 1953); Sayer v. Henderson, 225 N.C. 642, 35 S.E.2d 875; Webb v. Webb, 222 N.C. 551, 23 S.E.2d 897; Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Smith v. Gordon, 204 N.C. 695, 1......
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Sutherland v. DCC Litig. Facility, Inc. (In re Dow Corning Corp.)
...Further, North Carolina applies the statute of limitations “ ‘of the jurisdiction where the suit is brought.’ ” Sayer v. Henderson, 225 N.C. 642, 35 S.E.2d 875, 876 (1945) (quoting Vanderbilt v. Atlantic Coast Line R. Co., 188 N.C. 568, 125 S.E. 387, 393 (1924) ). Therefore, under North Car......
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Boudreau v. Baughman
...only the remedy directly and not the right to recover. See Williams v. Thompson, 227 N.C. 166, 41 S.E.2d 359 (1947); Sayer v. Henderson, 225 N.C. 642, 35 S.E.2d 875 (1945). The statute of repose, on the other hand, acts as a condition precedent to the action itself. Bolick v. American Barma......