#### F. M. GAITHER and others v. CASPER SAIN, Adm’r, and others.

Statute of Limitations — Judgment ■ Quando — Cause of. Action.

1. The statute which bars actions upon judgments after the lapse of ten years from the date thereof, does not apply to actions commenced before August, 1868, or where the right of action accrued before that date.

2. A judgment quando (unlike a final judgment) founded upon a right of action that accrued before said date, is not a new cause of action, and hence under section 136 of The Code, a suit upon it is governed by the statute of limitations and the law in force prior thereto.

(Rountree v. Sawyer, 4 Dev., 44; Henderson v. Burton, 3 Ired. Eq., 259; Lash v. Hauser, 2 Ired. Eq., 489; Dancy v. Pope, 68 N. C., 147; Ray v. Patton, 86 N. C,, 386; Rogers v„ Grant, 88 N. C., 440, cited and approved.)

*305Civil Action tried at Spring Term, 1884, of Davie Superior Court, before Gilmer, J, •

This was an action brought by plaintiffs as the assignees of Milton Gaither, guardian of plaintiffs, against Ca.sper Sain, Sr., administrator de bonis non of H. B; Holman, deceased, defendant, upon a judgment guando at fall term, 1869, in favor of Milton 'Gaither as guardian of plaintiffs, against B. Baile}, administrator of H. B. Holman, and an absolute judgment rendered at the same time in the same action against Beal Ijames, who is not sued in this action.

The plaintiffs offered in évidence a notice in writing given by the plaintiffs, and served 4th day of October, 1881, by the sheriff of Davie county on the defendant, administrator, notifying him that a motion would be made before His Honor, M. L. Eure, the judge then riding the 7th judicial district, at his chambers in Wilkesboro, on Friday the’14th of October, 1881, for leave to bring an action upon the judgment above described. The judgment, it was alleged, had become dormant, and no part of. the same had ever been paid, and plaintiffs were the assignees and owners of the same, and defendants liable therefor.

And plaintiffs also offered in evidence the order'of the judge by which it appears that the plaintiffs’ said motion was heard by him upon the affidavits of plaintiffs, and that it was adjudged “ that plaintiffs have shown good pause before me for suing on the former judgment, rendered in Davie superior court, in the case of Milton Gaither, guardian, against B. Bailey, administrator of H. B. Holman, deceased, and which was assigned to plaintiffs for value, and I adjudge and order that plaintiffs, F. M. Gaither, Z. T. Gaither, A. A. Dyson and wife, and others, assignees, have leave to sue upon said former judgment,” whip.h said order was signed by the judge.

The court held that proper notice has been given and due leave obtained to bring this action.

*306Plaintiffs then offered to show that letters of administration upon the estate of IT. B. Holman, deceased, were duly granted' to B. Bailey, the first administrator, prior to the year 1860, and to offer other proof in support of the action.

But His Honor having'intimated the opinion that plaintiffs’judgment was barred by the statute of limitations, as more than ten years had elapsed between the date of its rendition and the commencement of this action, or notice of motion for leave to sue, the plaintiffs in deference thereto submitted to a nonsuit and appealed.

Messrs. Clement & Gaither, for plaintiffs.

Messrs. Watson & Glenn and J. A. Williamson, for defendants.

Mbkrimon, J.

The intestate of defendant died, and letters.of administration upon his estate were granted,..prior to the year 1860, to one Bailey, who was afterwards removed and the defendant appointed administrator de banis non. The judgment quando acdderint sued upon was granted at fall term, 1869.

The court below seems to have entertained the erroneous impression that this action is governed by the statute (The Code, § 152) which bars actions upon judgments and decrees of any court, after ten years next after the date thereof.

The Code, § 136, provides that Title III of the Code of Civil Procedure, entitled “Limitations of Actions,” shall not extend to actions commenced before the 24th day of 'August, 1868, nor when the right of action accrued before that date, but the statutes in force previous to that date shall be applicable to such actions and cases.

Now the right of action in this case accrued long before 1868. It seems however that the court supposed the quando judgment sued upon, although founded upon a right of action that accrued before that time, was itself a new causa *307 litis, and therefore the action was barred after ten years. If so, this was a misapprehension of the law in that respect. That was not a final judgment that, might be sued upon' as a new cause of action : it was conditional and interlocutory in its nature, and stood open to be completed — ■ made final and absolute when assets should go into the hands of the administrator : and this should be ascertained and made to appear by a proper proceeding. Under the common law method of procedure, this was done by sci.fa.-; under the code-method of procedure, as it prevails in this state,' it is done by action, as the plaintiffs are seeking to do in this case.

The purpose of the present action is to charge the administrator with assets that have come into his hands since the judgment quart do was given, and obtain a final judgment upon a right of action that accrued prior t,o 1868. It is an action that takes the place of, and is a substitute for' the sci. fa. proceeding in like cases. Bing. on Judgment, 3, 90, et seq, and as to form of judgment ib., 331; Rountree v. Sawyer, 4 Dev., 44 ; Henderson v. Burton, 3 Ired. Eq., 259; Lash v. Hauser, 2 Ired. Eq., 489; Dancy v. Pope, 68 N. C., 147; Ray v. Patton, 86 N. C., 386; Rogers v. Grant, 88 N. C., 440.

We may add that the views thus expressed are in harmony with the provisions of the statute (The Code, §§ 1433, 1476) which provide that estates whereof administration had been granted before the first day of July, 1869, “shall be dealt with, administered and settled according to the law as it existed just prior to the said date.” There was no-statutory bar as the court intimated.

There is error. The nonsuit must be set aside and the case reinstated and disposed of according to law. To that end, let this opinion be certified to the superior court. It is so ordered.

Error. Reversed.