ADAMS, J., dissenting; CONNOR, J., concurs in dissent. This is an action brought by plaintiff against the defendant to recover on a special contract and on quantum meruit. The jury found that there was no special contract, but gave a verdict on the quantum meruit. The defendant also set up the plea of the statute of limitations.
The plaintiff offered in evidence summons issued 27 February, 1922, served 28 February, 1922, by sheriff of New Hanover County, in case entitled, C. S. Southerland v. J. A. Southerland. Judgment of nonsuit in the above case at December Term, 1926, Judgment Docket No. 14, page No. 253. Bill of cost in above case marked "Paid." Summons in case entitled C. S. Southerland v. W. T. Crump, executor of J. A. *Page 112 Southerland, issued 20 January, 1927, served 31 January, 1927. Plaintiff offered judgment of nonsuit in last mentioned case rendered at the August Term, 1927, also judgment of the Supreme Court at Spring Term, 1928, filed 14 March, 1928, and also judgment of the clerk of the Superior Court as of the judgment of the Supreme Court, rendered ______ day of ________, 1928. Plaintiff offered summons in case of C. S. Southerland v. W. T. Crump, executor, issued 12 March, 1929, received by sheriff of Scotland County 14 March, 1929, and served 14 March, 1929. Further necessary facts will be set forth in the opinion.
Judgment was rendered for plaintiff on the quantum meruit. Defendant made numerous exceptions, and assigned errors and appealed to the Supreme Court. At the close of plaintiff's evidence and at the close of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we think there was error.
The sole question involved in this appeal is whether the cost in the second action was paid before the present action was instituted.
C. S., 415 is 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 informa pauperis." See Hampton v. Spinning Co., 198 N.C. 235.
The former action in this cause, by an opinion of the Supreme Court filed 14 March, 1928, upon motion for nonsuit at the close of all the evidence made by defendants, was affirmed. Southerland v. Crump,195 N.C. 856. The present action was instituted by the issuance of summons on 12 March, 1929 — within one year after the nonsuit in the original action.
In Rankin v. Oates, 183 N.C. 517, it is decided that the burden to repel the plea of the statute of limitations is on the plaintiff. The defendants set up the plea of the one year statute of limitations.
The record introduced by plaintiff does not show that the costs in the original action had been paid by the plaintiff before the commencement of the new suit. There is no evidence that "the original suit was *Page 113 brought in forma pauperis." The statute is mandatory and the burden is on the plaintiff to show compliance.
Seventh issue: "Is the plaintiff's cause of action barred by the three year statute of limitations, as alleged in the answer? Answer: No."
Eighth issue: "Is the plaintiff's cause of action barred by the one year statute of limitations, as alleged in the answer? Answer: No."
We find the following in the record: "I instruct you, if you believe the evidence in the case, you will answer the seventh issue, No. and also the eighth issue No. (At the close of the testimony, the court stated to counsel on both sides, that as he understood the evidence, he would have to charge the jury that if they believed the evidence, they would decide that plaintiff's action was not barred by the statute of limitations. At that time, the court understood there was evidence, that the cost in both nonsuits had been paid before the pending action had been instituted. To this, counsel, all of whom heard this statement, made no response, and did not argue this phase of the case to the jury; and, the court, at the conclusion of the argument charged the jury as he had intimated, without objection or question on the part of counsel. Their first objection to this instruction is contained in the exception to this part of the charge contained in defendant's case on appeal, and in their exception to the refusal to nonsuit.) To so much of charge as is embraced in brackets above, just above the statement inserted by the court, defendant, in apt time, excepted," and assigned error.
The judge in the court below said that he "understood" there was evidence that the cost in both nonsuits had been paid. But in this he was evidently laboring under a misapprehension, for the record is wanting in this respect. The statement made by the court below and what occurred thereafter, does not show an admission or estoppel by counsel. Counsel for defendant was careful at the close of plaintiff's evidence and at the close of all the evidence to make motions for judgment as in case of nonsuit to protect his client's rights. These rights were preserved by exceptions and assignments of error duly made.
It is conceded that, on the record filed in this Court, the evidence of the plaintiff is not sufficient to repel the plea of the statute of limitations. But it is contended that as "the court understood there was evidence that the cost in both nonsuits had been paid before the pending action had been instituted," it is permissible for us to assume that evidence of this character was brought to the attention of the jury in some proper way, and may have been inadvertently omitted from the record on appeal. With respect to a disputed question of fact we can know judicially only what the record discloses. Harper v. Bullock, 198 N.C. 448, andHarrington v. Wadesboro, 153 N.C. 437, are not at variance with this position, but in support of it. *Page 114
Indeed, in every case where the trial court overrules a motion to nonsuit, he does so with the understanding that the evidence is sufficient to carry the case to the jury. And this is the very question we are called upon to review.
In settling the case on appeal, the careful judge did not state that there was an agreement or admission by counsel for defendant that the cost had been paid, nor that there was evidence of it — neither do we. The court below was not stating contentions of the parties where it is the duty of counsel to except promptly or his objection is waived. S. v. Sinodis, 189 N.C. at p. 571. The record imports verity, we are bound by what it contains. The judgment is
Reversed.