Koonce v. . Pelletier

20 S.E. 391 | N.C. | 1894

The administrators filed their final account on 23 August, 1883. An action was begun on 5 March, 1888, against them and the sureties on their bond for the nonpayment of a judgment in favor of the plaintiff relator which had been obtained against their intestate. The summons was not served on the appellee, one of the sureties on the bond, nor was there a chain of alias and pluries summonses kept up against her. On 11 February, 1891, a summons was issued against her and a succession of summonses was kept up until she was served, on 15 March, 1892. The failure to keep up the chain of summonses was a discontinuance of the action as to her. Etheridge v. Woodley,83 N.C. 11; Penniman v. Daniel 91 N.C. 431. This is, therefore, (235) a new action as to her, or at most a notice under section 223 of The Code, which was begun on 11 February, 1891. In either case the statute ran till that date. Rufty v. Claywell, 93 N.C. 306. The complaint alleged a breach of the bond by a demand and a refusal to pay the debt. The defendant pleads the three-years statute of limitation. Code, sec. 155 (6). Being pleaded, it was incumbent upon plaintiff to show that the breach of the bond was within less than three years before the institution of this action against the appellee. Hussey v. Kirkman,95 N.C. 63; Moore v. Garner, 101 N.C. 374; Hobbs v. Barefoot,104 N.C. 224; Nunnery v. Averitt,111 N.C. 395. This was not done, and the surety is protected by the lapse of three years after demand and refusal.Norman v. Walker, 101 N.C. 24; Woody v. Brooks, 102 N.C. 334;Kennedy v. Cromwell, 108 N.C. 1; Brawley v. Brawley,109 N.C. 524. In the original action against the administrators, in which this defendant was not served with summons, the referee nevertheless had a notice served upon her on 25 May, 1889, to appear at the hearing before him. She did not appear, and this notice to one not brought into court by legal process was of no effect. It is true the referee had power to make additional parties. Code, sec. 422; Perkins v. Berry, 103 N.C. 131. But this was not an amendment making an additional party. it did not purport to be such. It was simply a notice served on one who had not been served with process to appear before the referee without any order to make her a party. But had it been otherwise, the making her a party on 25 May, 1889, would not affect the principle above laid down. It does not appear that the breach of the bond was within three years prior to that date.

Affirmed.

Cited: Parker v. Harden, 121 N.C. 58; House v. Arnold, 122 N.C. 221.

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