Speas v. Ford, 396

• Decision Date: 20 January 1961
• Docket Number: No. 396,396
• Citation: 117 S.E.2d 784,253 N.C. 770
• Court: North Carolina Supreme Court
• Parties: Daniel D. SPEAS, Inez M. Cope, Nollie G. Cope, Plaintiffs, v. William T. FORD, Defendant; Roadway Express, Inc., and D. J. Reaity Company, Additional Defendants.

Page 784

117 S.E.2d 784

253 N.C. 770

Daniel D. SPEAS, Inez M. Cope, Nollie G. Cope, Plaintiffs, v. William T. FORD, Defendant; Roadway Express, Inc., and D. J Reaity Company, Additional Defendants.

No. 396

Supreme Court of North Carolina.

Jan. 20, 1961

Judge Phillips allowed the motions of Nollie G. Cope, Roadway, and Realty Co. for judgment sustaining their pleas of the statute of limitations and entered judgment accordingly. Defendant appealed.

Eugene H. Phillips and Blackwell, Blackwell & Canady, Winston-Salem, for Daniel D. Speas and Inez M. Cope.

Hastings, Booe & Mitchell, Winston-Salem, for D. J. Realty Co.

Deal, Hutchins & Minor, Winston-Salem, for Roadway Express, Inc.

Craige, Brawley, Lucas & Hendrix, Winston-Salem, for William T. Ford.

RODMAN, Justice.

Preliminarily we are confronted with the contention that Judge Phillips had no right to act on the notion, because defendant had no prior notice. The contention is without merit. The motion was made at the term at which the cause was calendared for trial. Before the jury was empaneled, the parties suggested to the court: 'that a Pre-Trial Conference was necessary in order for the Court to pass on various motions and points of law raised by the pleadings.' The law applicable, and the reason therefor, is succinctly stated by Ervin, J., in Collins v. North Carolina State Highway & Public Works Commission, 237 N.C. 277, 74 S.E.2d 709, 714. He said: 'The law manifests its practicality in determining 'When notice of a motion is necessary'. When a civil action or special proceeding is regularly docketed for hearing at a term of court, notice of a motion need not be given to an adversary party, unless actual notice is required in the particular cause by some statute. This rule is bottomed on the proposition that all parties to a civil action or special proceeding are bound to take notice of all motions made and proceedings had in the action or special proceeding in open court during the term.'

The statute of limitations in an action for fraud begins to run from its discovery and is barred in three years from that date. G.S. § 1-52, subd. 9.

When the statute starts to run, it continues until stopped by appropriate judicial process, G.S. § 1-15; Swartzberg v. Reserve Life Insurance Co., 252 N.C. 150, 113 S.E.2d 270; Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112; Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 105 S.E.2d 282; Aydlett v. Major & Loomis Co., 211 N.C. 548, 191 S.E. 31; City of Washington v. Bonner, 203 N.C. 250, 165 S.E. 683; or for statutory causes not here material.

When the statute is pleaded, the burden rests on the party asserting a cause of action to remove the bar. Swartzberg v. Reserve Life Insurance Co., supra; Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge, 247 N.C. 310, 101 S.E.2d 8.

The reasons which justify a judgment sustaining a demurrer for failure to state a cause of action likewise support a judgment sustaining the plea of the statute of limitations and dismissing the action when it appears on the face of plaintiff's pleadings that plaintiff's right to recover is barred by the lapse of time...