CLARK, C. J., dissenting. Civil action to recover damages for an alleged wrongful conversion of plaintiff's automobile.

Upon denial of liability and issues joined, the jury returned the following verdict:

"1. Did the defendant wrongfully convert to his own use the property of the plaintiff, as alleged in the complaint? Answer: `Yes.' *Page 556

"2. Is the plaintiff's cause of action barred by the statute of limitations? Answer: `No.'

"3. What damages is the plaintiff entitled to recover by reason of the conversion of said car? Answer: `$1,875.'"

After the rendition of the verdict, his Honor set aside the jury's finding as to the bar of the statute of limitations, answered the second issue in the affirmative, as a matter of law, and thereupon rendered judgment for the defendant, dismissing the action and taxing the plaintiff with the costs. Both sides appealed. The court was without authority to reverse the jury's finding on the second issue, answer it himself, and then render judgment on the verdict as amended. Garland v. Arrowood, 177 N.C. 373; Sprinkle v. Wellborn,140 N.C. 163; Hemphill v. Hemphill, 99 N.C. 436. And it has been held that, after verdict, the same may be set aside and the plaintiff's suit dismissed by the trial court only for want of jurisdiction, or upon the ground that no cause of action is stated in the complaint. Riley v. Stone,169 N.C. 422. A different course seems to have been pursued in Davis v. R.R., 170 N.C. 582, but there the question of procedure apparently was not presented for consideration.

Of course, his Honor could have set the verdict aside as a matter of law or in his discretion; and in either event the cause would then have stood upon the docket for a new trial. C. S. 591. When a verdict is set aside as a matter of law, the losing party may appeal, and (519) the action of the court in this respect is subject to review. Powers v. Wilmington, 177 N.C. 361. But the rule is otherwise when the judge acts in his discretion, unless this discretion has been grossly abused and resulted in oppression, which is not likely to occur in any case. Settee v. Electric Railway, 170 N.C. 367.

But we are of opinion that the court should have directed a verdict against the plaintiff on the second issue. The defendant having set up the plea of the statute of limitations, as a bar to the plaintiff's right to recover, the burden was on the plaintiff to show that his suit was brought within three years from the time of the accrual of the cause of action, or that otherwise it was not barred. This has been the prevailing rule with us as to the burden of proof where the statute of limitations is properly pleaded. Tillery v. Lumber Co., 172 N.C. 296, and cases there cited.

Admittedly the plaintiff's alleged cause of action accrued on or about 2 May, 1914. The present suit was instituted in the Superior Court of *Page 557 Gaston County, 6 September, 1917, three years, four months, and four days after the alleged conversion. This was too late, unless the plaintiff has otherwise saved himself from the running of the statute.

To meet this situation, the plaintiff offered evidence tending to show that a former suit to recover the automobile in question was commenced in Henderson County on 25 May, 1914, and that said suit remained upon the Superior Court docket of said county until the May Term, 1917, when a voluntary nonsuit was taken therein. Plaintiff contends that under C. S. 415, he is entitled to bring a second action at any time within one year after the judgment of nonsuit in the original cause. This is so, provided "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 informa pauperis." It is admitted that the original suit here was not broughtin forma pauperis, and that the costs of said action were not paid by the plaintiff until 14 September, 1921, four years and eight days after the commencement of the new suit.

It was held in Bradshaw v. Bank, 172 N.C. 632, that the proviso in this statute does not forbid the plaintiff's bringing a second action without paying the costs of the first, when not otherwise barred by the statute of limitations, but that it does annex such "as a condition to bringing the new actions free from the bar of the statute, if pleaded." That is to say, if both suits are brought within three years from the date of accrual of the plaintiff's cause of action, the failure to pay the costs in the original suit will not bar the plaintiff's right to proceed in the second action. But where the pendency of the first suit and the right to bring another within a year after its dismissal is relied upon to repel the plea of the statute of limitations, the plaintiff is required to pay the costs in the original action before the commencement (520) of the new suit, unless the first suit was brought in formapauperis. This is the plain meaning of the words used in the statute and we are not at liberty to disregard its provisions. Summersv. R. R., 173 N.C. 398.

The correct result has been accomplished by the judgment entered below, though irregularly rendered; and as no harm can come from letting it stand, we shall affirm it. Earnhardt v. Comrs., 157 N.C. 234; Oldham v. Rieger,145 N.C. 254. Upon the uncontroverted facts, the plaintiff is not entitled to recover, and any error committed on the trial was harmless. Cherry v.Canal Co., 140 N.C. 426. "A new trial will not be granted when the action of the trial judge, even is erroneous, could by no possibility injure the appellant." Butts v. Screws, 95 N.C. 215. The judgment dismissing the action will be upheld.

On both appeals, judgment

Affirmed. *Page 558