Speas v. Ford , 253 N.C. 770 ( 1961 )

117 S.E.2d 784 (1961) 253 N.C. 770

Daniel D. SPEAS, Inez M. Cope, Nollie G. Cope, Plaintiffs,
v.
William T. FORD, Defendant; Roadway Express, Inc., and D. J. Realty Company, Additional Defendants.

No. 396.

Supreme Court of North Carolina.

January 20, 1961.

Eugene H. Phillips and Blackwell, Blackwell & Canady, Winston-Salem, for Daniel D. Speas and Inez M. Cope.

Hastings, Booe & Mitchell, Winston-Salem, for D. J. Realty Co.

Deal, Hutchins & Minor, Winston-Salem, for Roadway Express, Inc.

Craige, Brawley, Lucas & Hendrix, Winston-Salem, for William T. Ford.

RODMAN, Justice.

Preliminarily we are confronted with the contention that Judge Phillips had no right to act on the motion, because defendant had no prior notice. The contention is without merit. The motion was made at the term at which the cause was calendared for trial. Before the jury was empaneled, the parties suggested to the court: "that a Pre-Trial Conference was necessary in order for the Court to pass on various motions and points of law raised by the pleadings." The law applicable, and the reason therefor, is succinctly stated by Ervin, J., in Collins v. North Carolina State Highway & Public Works Commission, 237 N.C. 277, 74 S.E.2d 709, 714. He said: "The law manifests its practicality in determining ``When notice of a motion is necessary'. When a civil action or special proceeding is regularly docketed for hearing at a term of court, notice of a motion need not be given to an adversary party, unless actual notice is required in the particular cause by some statute. This rule is bottomed on the proposition that all parties to a civil action or special proceeding are bound to take notice of all motions made and proceedings had in the action or special proceeding in open court during the term."

The statute of limitations in an action for fraud begins to run from its discovery and is barred in three years from that date. G.S. § 1-52, subd. 9.

When the statute starts to run, it continues until stopped by appropriate judicial process, G.S. § 1-15; Swartzberg v. Reserve Life Insurance Co., 252 N.C. 150, 113 S.E.2d 270; Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112; Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 105 S.E.2d 282; Aydlett v. Major & Loomis Co., 211 N.C. 548, 191 S.E. 31; City of Washington v. Bonner, 203 N.C. 250, 165 S.E. 683; or for statutory causes not here material.

When the statute is pleaded, the burden rests on the party asserting a cause of action to remove the bar. Swartzberg v. Reserve Life Insurance Co., supra; Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge, 247 N.C. 310, 101 S.E.2d 8.

The reasons which justify a judgment sustaining a demurrer for failure to state a cause of action likewise support a judgment sustaining the plea of the statute of limitations and dismissing the action when it appears on the face of plaintiff's pleadings that plaintiff's right to recover is barred by the lapse of time properly pleaded. Nowell v. Hamilton, supra; Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407; Latham v. Latham, 184 N.C. 55, 113 S.E. 623; Stubbs v. Motz, 113 N.C. 458, 18 S.E. 387; McIntosh, N. C. P. & P., 2nd ed., sec. 373.

The date for defendant Ford to pay his money and consummate his contract with plaintiffs was 1 March 1955. Prior to that time he notified plaintiff he would not comply with the contract. He specifically justified his refusal because of his knowledge "that D. J. Realty Company would immediately terminate its lease of the premises occupied by Winston Truck Service." This specific assertion of knowledge acquired on or prior to 1 March 1955 fixes that date as the latest date for the statute to start to run. More than three years elapsed between the date he alleges he discovered the fraud and 17 October 1958, when defendant first claimed damages for fraud, and more than three years prior to the issuance or service of process requiring appellees to answer.

Since the plea is established by the facts stated by defendant Ford, it follows that the judgment is

Affirmed.