Sheppard v. Barrus Construction Co.

11 N.C. App. 358 | N.C. Ct. App. | 1971

BRITT, Judge.

The three-year statute of limitations (G.S. 1-52) began to run against plaintiff’s claim on 31 August 1965 when a next friend was appointed for the special purpose of instituting an action on the claim. Rowland v. Beauchamp, 253 N.C. 231, 116 S.E. 2d 720 (1960). Once the statute of limitations begins to run against an action, it continues to run. Rowland v. Beauchamp, supra. Unless saved by some statute or rule, plaintiff’s claim is barred by the statute of limitations.

The question then arises, was plaintiff’s claim saved by G.S. 1-25 (formerly C.S. 415) ? While this statute was repealed by the 1967 General Assembly when the Rules of Civil Procedure were enacted, repeal of the statute being effective on 1 January 1970, the effective date of the Rules of Civil Procedure, the statute and not the rules (particularly Rule 41) appears to be applicable to the instant case. The statute provided as follows:

If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis. (Emphasis added.)

We think the answer to the question stated is found in the case of Osborne v. Railroad, 217 N.C. 263, 7 S.E. 2d 500 (1940). Pertinent facts in that case are as follows: Plaintiff allegedly received personal injuries on 14 July 1934. Within three years thereafter, he instituted an action but on 17 August 1937 caused a judgment of voluntary nonsuit to be entered. On 6 October 1937, he instituted a new action and defendant pleaded the three-year statute of limitations. The transcript of record filed in the Supreme Court is silent as to whether the cost on the original action was paid before the commencement of the second action, as well as whether the original action was brought in forma pauperis. The plaintiff appealed from a judgment of nonsuit and in a per curiam opinion, the Supreme Court said:

“This appeal presents no new question of law. Even though plaintiff may have instituted the original action within three years from the time of the accrual of his cause of action against defendant, and this action within one year from the date of judgment of nonsuit in original action, the record as constituted on this appeal fails to show facts ■which would entitle him to maintain this action under the provisions of C.S. 415 (Numerous citations.)”

In the case at hand, a next friend was appointed by plaintiff and the original action was instituted on 31 August 1965. A judgment of voluntary nonsuit was entered on 5 August 1969. Although a second action was instituted on 29 November 1969 and thereafter dimissed, and the present action was instituted on 14 May 1970, there is nothing in the record before us to show that the costs were paid in either of the previous actions, or that either of them was brought in forma pauperis.

We deem it unnecessary to determine if the present action alleges new matter not alleged in the original action. Suffice to say, for the reasons stated, the judgment of the superior court dismissing the action as being barred by the three-year statute of limitations is

Affirmed.

Judges Campbell and Graham concur.