Travis v. McLaughlin , 29 N.C. App. 389 ( 1976 )

224 S.E.2d 243 (1976) 29 N.C. App. 389

Penelope F. TRAVIS, Administratrix of the Estate of David Michael Travis
v.
James George McLAUGHLIN and Ryder Truck Rental, Inc.

No. 7528SC995.

Court of Appeals of North Carolina.

May 5, 1976. Certiorari Denied July 14, 1976.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for plaintiff.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P.A. by O. E. Starnes, Jr., Asheville, for defendant.

Certiorari Denied by Supreme Court July 14, 1976.

CLARK, Judge.

Plaintiff's first argument is that the statute of limitations is an affirmative defense which must be pleaded in an answer and which may not ordinarily be raised by a Rule 12 motion. Plaintiff cites Iredell County v. Crawford, 262 N.C. 720, 138 S.E.2d 539 (1964), and several other cases as support for her position. We note, however, that these cases were decided before 1967 and before the effective date of the Rules of Civil Procedure in North Carolina.

In Teague v. Motor Co., 14 N.C.App. 736, 189 S.E.2d 671 (1972), the court was presented with the question of whether plaintiff can file a complaint against the wrong party and then after the statute of limitations has run, attempt to bring the correct party into the action by a purported amendment of the complaint. Defendant appellee raised the defense of the statute of limitations in a motion to dismiss under Rule 12 on the grounds that defendant was not served with process within two years after the death of plaintiff's intestate and the claim was barred by G.S. 1-53. The motion to dismiss was granted in the trial court and affirmed by this Court, which stated: "The defense of the statute of limitations was properly raised by a motion to dismiss for failure to state a claim for relief. 1A Barron & Holtzoff, § 281, 2A Moore's Federal Practice, § 12.09; . . ." 14 N.C.App. at 740, 189 S.E.2d at 673.

Under Rule 12(b) the motion to dismiss, for whatever grounds asserted, may be made at the option of the pleader, either by motion before pleading or in the responsive pleading demanded by the adversary pleading. In the present case the defendant properly exercised his option to assert the statute of limitations in a Rule 12 motion.

Plaintiff assigns as error the granting of defendant's motion to dismiss on the ground that her claim was barred by the two-year statute of limitations, G.S. 1-53.

G.S. 1-21 tolls the statute of limitations because of the absence of a defendant from the State at the time the cause of action accrued, or if the defendant resides out of the State or remains continuously absent therefrom for one year or more after such cause of action accrues. G.S. 1-105 and G.S. 1-105.1, providing for substitute service of a nonresident motorist by service upon the Commissioner of Motor Vehicles, are not in conflict with and do not repeal G.S. 1-21, even though there is no need for a tolling statute when a nonresident defendant is amenable to process. This Court so held in a recent decision which was filed while the present case was pending appeal, Duke University v. Chestnut, 28 N.C.App. 568, 221 S.E.2d 895 (1976).

The order dismissing the plaintiff's claim is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

BRITT and PARKER, JJ., concur.