Hardin v. . Greene

BeowN, J.

This is an action in the nature of a creditor’s bill, brought to collect certain judgments set- out in the record against the defendant’s intestate in favor of H. J. Hardin,, and A. W. Beach, administrator of John Ragan.

The assignments of error, relate largely to the statute of limitations.

The judgment upon which plaintiff Hardin sues was rendered Fall Term, 1902, upon a number of small judgments against L. L. Greene in favor of W. T. Hayes and others. It is admitted that the judgment was duly assigned to plaintiff Hardin.

As the summons in this action was issued on 27 June, 1910, less than eight years have elapsed from the time of the rendition of the judgment until this action was commenced. We are unable, therefore, to see anything upon which to found the plea of the statute as to that judgment.

It is immaterial whether the small judgments upon which this judgment was rendered at Fall Term, 1902, were barred or not. The statute should have been pleaded as to them in that action. The matters determined by the judgment at Fall Term, 1902, cannot now be considered. They are foreclosed by that decree.

We find no error as to the rulings of the court in respect to the Hardin judgment, and the judgment of the court in that particular is affirmed.

The defendant assigns error for that his Honor signed the order striking out defendants; amended answer in so far as it affected the plaintiff A. W. Beach, administrator. The order is as follows:

This cause coming on for trial, and the defendants, in answer to the complaint, read an amended answer setting up the statute of limitations,, which was filed at Fall Term, 1912, under an order made by bis Honor, Judge Biggs, at Fall Term, 1911, permitting tbe defendants to file an amended answer, and it appearing to tbe court tba.t in tbe' original answer no plea of tbe statute of limitations bas been pleaded, and at tbe time of making tbe said order there was no suggestion made that it was tbe purpose of tbe defendants to set up sucb plea in tbe amended answer authorized by said order, and it appearing to tbe court that neither tbe interpleader, A. W. Beach, nor bis attorney, bad notice that such plea was to be pleaded and set up until tbe pleadings were read at this term:

It is, therefore, on motion of E. F. Lovill, attorney for tbe interpleader, ordered by tbe court that sucb plea of tbe statute of limitations, so far as said plea would affect tbe interpleader, be stricken out, and to which said order tbe defendant excepted.

(Signed) F. A. DaNIels,

Judge Presiding.

There was error in making this order. An unconditional and unrestricted right to file an amended answer bad been granted by Judge Biggs, and tbe amended answer filed in pursuance of such order.

Judge Biggs bad plenary power to make sucb order, and bis successor at a subsequent term bad no right to set it aside because in sucb amended answer tbe defendant set up tbe statute of limitations. Sucb plea is not immoral, and under tbe terms of tbe order tbe defendant bas as much right to set it up as any other plea. Smith v. Smith, 123 N. C., 233; Wilson v. Pearson, 102 N. C., 306.

So much of tbe judgment as relates to tbe cause of action of Beach, administrator of Eagan, is set aside.

Tbe costs of this appeal will be paid by A'. W. Beach, admin-', istrator of John Eagan.

Partial new trial.