Mazzocone v. Drummond

42 N.C. App. 493 | N.C. Ct. App. | 1979

ERWIN, Judge.

The defendant first contends that this action abated, because he had not been served with process at the time of the death of Mrs. Drummond. Mrs. Drummond filed her complaint on 24 August 1977. By doing so, she commenced this civil action as of that date. G.S. 1A-1, Rule 3. At all times thereafter, this action was a viable pending action. Although Mrs. Drummond died while this action was pending, her death did not abate the action. “No action abates by reason of the death of a party if the cause of action survives.” G.S. 1A-1, Rule 25(a). The plaintiff’s cause of action in the present case is simply an action to collect a debt, that debt being a Pennsylvania judgment. See Teele v. Kerr, 261 N.C. 148, 134 S.E. 2d 126 (1964). A cause of action based upon the collection of a debt survives the death of a plaintiff. See G.S. 28A-18-1. Therefore, this action did not abate upon the death of Mrs. Drummond.

We note that the defendant was required to file an answer admitting or denying the averments of the plaintiff’s complaint within 30 days after he was served with the summons and complaint. G.S. 1A-1, Rule 8(b), 12(a)(1). The defendant failed to comply with that requirement. “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” G.S. 1A-1, Rule 8(d). Therefore, all averments in the plaintiff’s complaint with the exception of the amount of the Pennsylvania judgment are deemed admitted by the defendant, and they are not in issue.

The defendant next contends that the plaintiff’s action should have been abated for the reason set forth in the defendant’s plea in abatement. All pleas have been abolished by the Rules of Civil Procedure. G.S. 1A-1, Rule 7(c). However, the pendency of a prior action between the same parties for the same cause of action is a legal defense to a claim for relief in the same nature as a plea in abatement. Lehrer v. Manufacturing Co., 13 N.C. App. 412, 185 S.E. 2d 727 (1972). All legal defenses to a claim for relief, with certain exceptions not applicable to this case, must be asserted in the responsive pleading. G.S. 1A-1, Rule 12(b). If they are not, they are waived. Since the defendant did not present his defense in a properly filed answer, his defense was waived. The defendant’s proffered answer was not timely filed and was, for that reason, insufficient to either raise a defense for the first time or revive a defense that had already been waived. Therefore, the defendant’s contention is without merit.

The defendant next contends that the trial court erred in granting summary judgment, because the Pennsylvania court order providing for the payment of alimony to Mrs. Drummond could have been modified retroactively. Assuming arguendo that the Pennsylvania court order could be modified retroactively, that fact does not affect the outcome of this case. The plaintiff’s claim was not based upon that order; the plaintiff’s claim was based upon a judgment. In other words, the plaintiff was not seeking to collect alimony payments that were in arrears; instead, she was attempting to have the courts of this State enforce a judgment that was entered in her favor by the courts of Pennsylvania. The defendant has not shown, nor do we find, that the judgment was anything other than a final judgment. Therefore, the judgment must be accorded full faith and credit.

The defendant has presented additional assignments of error which we have reviewed and find to be without merit.

Affirmed.

Judges Clark and Carlton concur.