MRS. EVELYN W. ESTRIDGE, Plaintiff and BIVENS FLOOR & CABINETS., INC., and HAWTHORNE SALES COMPANY, Intervenors v. CRAB ORCHARD DEVELOPMENT COMPANY, INC., and R. S. PATE, Defendants

No. 44

(Filed 30 January 1970)

ON certiorari to review the decision of the North Carolina Court of Appeals in 5 N.C. App. 604.

The plaintiff, a creditor of Fred Denson and wife, brought this .action to have a transfer by them to Crab Orchard Development Company of their equity in certain certificates of deposit declared to be an assignment for the benefit of creditors so as to enable the plaintiff to share in the proceeds thereof. The intervenors are judgment creditors of Denson seeking the same relief. They adopt the allegations of the original complaint. The defendants filed answers pleading, among other things, the statute of limitations. No reply was filed. The Superior Court, upon motion of Crab Orchard for judgment on the pleadings, dismissed “the actions of all plaintiffs” on the ground that the cause of action is barred by the three-year statute of limitations. The Court of Appeals affirmed.

Henry E. Fisher, Attorney for the plaintiff; Craighill, Rendleman & Clarkson, by Hugh B. Campbell, Jr., Attorneys for the Inter-venors.

Barnes <& Dekle, by W. Faison Barnes, Attorneys for the defendant, Crab Orchard Development Company, Inc.

Laice, J.

This is a companion case to Wilson v. Crab Orchard Development Company, decided this day. While not identical, the complaint of the original plaintiff, adopted by the intervenors, is substantially the same as the complaint filed in the Wilson case. The position of the intervenors in this action is, in all material respects, the same as that of the plaintiff in the Wilson case. The position of the original plaintiff in this action is subject to the further infirmity that she does not allege her own ignorance of the transfer from the Densons to Crab Orchard at the time it was made, 28 October 1960. The answer of the defendant alleges that shares of Crab Orchard stock wore actually offered to this plaintiff by Denson and she refused to accept them. The plaintiff filed no reply to this allegation.

Frost, Olive and Denson, who were parties defendant in the *217 Wilson case, are not parties to the present action. R. S. Pate, who is a party defendant to this action, was not made a party to the Wilson case, but, for the reasons mentioned in our opinion in the Wilson case, the present complaint alleges no cause of action in this plaintiff against -him.

For the reasons set forth in our opinion in the Wilson case the judgment in the present action is

Affirmed.

Moobe, J., did not participate in the consideration or decision of this case.