#### H. J. HARDIN et al. v. MATTIE J. GREENE, Administratrix or L. L. GREENE, et als.

(Filed 10 December, 1913.)

1. Limitation of Actions — Judgments—Pleadings.

Where judgment is rendered in the Superior Court upon judgments theretofore rendered, the statute of limitations as to the prior judgments should have been pleaded in the later action, if available, and it will begin to run only from the date of the last judgment.

2. Trials — Pleadings—Extension of Time — Further Orders — Court’s Discretion — Limitation of Actions.

It is not within the discretion of the trial judge to order stricken out a part of an amended pleading simply because the statute of limitations was pleaded in it when the judge holding a former term, of the court has unconditionally allowed the pleader further time in which to file the amended answer.

Alien, J., dissenting.

Appeal by defendant from Daniels, at April Term, 1913, of "Watauga.

Civil action tried upon these issues:

I. In what amount, if any, is the defendant Mattie J. Greene, administratrix, indebted to the plaintiff H. J. Hardin? Answer : $2,000, with interest on $1,500 from 4 August, 1902.

2. In what amount, if anything,, is defendant M. J. Greene, administratrix, indebted to plaintiff A. W. Beach, administrator? Answer: $419.63, with interest from 2 May, 1892.

3. In what amount, if anything, is defendant M. J. Greene, administratrix, indebted to plaintiff M. N. Horton, administrator? Answer: Nothing.

4. Is 'the debt of the plaintiff II. J. Hardin barred by the statute of limitations? Answer: No.

*100• 5. Is the debt of M. N. Horton, administrator, barred by the statute of limitations? Answer: No.

From the judgment rendered, the defendant appealed.

L. D. Lowe for plaintiff.

F. A. Linney, T. A. Love for defendant.

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 *101order 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.

Allen, J.,

dissenting: I do not agree to tbe part of tbe opinion of tbe Court bolding that there was error in striking out tbe plea of tbe statute of limitations in tbe amended answer. Tbe judgment of bis Honor is presumed to be correct (Commis*102 sioners v. Gill, 126 N. C., 87),, and. if the law vested him with discretion in. the matter, he is presumed to have exercised it. Pelletier v. Lumber Co., 123 N. C., 601; Balk v. Harris, 130 N. C., 381. The order of Judge Biggs allowing an amended answer to be filed was made at the Fall Term, 1911, and the answer was not filed until the Fall Term, 1912, more than one term of court having intervened between the mating of the order and the filing of the answer. In Sheek v. Sain, 127 N. C., 271, the Court says: “It is well settled that the court has the right to give further time to parties to plead. But this extension of time is within certain limits and cannot extend beyond the next term of court, unless by the consent of the parties. To attempt to give further time than this would be to trench upon the prerogative of the judge succeeding him.” 'It does not ap--pear from the record that the parties consented to any extension of time beyond the next term of court after Judge Biggs made his order, or that any leave was obtained to file the answer after it was prepared, and upon the authorities cited it would seem that the right to answer had expired and that it was then discretionary with the judge to permit it to remain on the files or strike it out, and that he is presumed to have exercised this discretion. His Honor was doubtless influenced in his action by the fact that there had been a former suit between the parties, which was dismissed because of an effort to settle and compromise and under an agreement that the statute of limitations would not be pleaded.