Congleton v. City of Asheboro

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174 S.E.2d 870 (1970)

Dorothy Little CONGLETON v. CITY OF ASHEBORO and Carolina Power and Light Company.

No. 7019SC268.

Court of Appeals of North Carolina.

June 24, 1970.

Certiorari Denied July 31, 1970.

*871 Ottway Burton, Asheboro, for plaintiff appellant.

Sherwood H. Smith, Jr., Raleigh, and Archie L. Smith, Asheboro, for defendant appellee, Carolina Power and Light Company.

G. E. Miller, Miller, Beck & O'Briant, Asheboro, for defendant appellee City of Asheboro.

MORRIS, Judge.

The only question before us is whether plaintiff's claim has been barred by *872 the statute of limitations, as defendants contend it is. From the record it appears that the summons was issued and the request for extension of time within which to file a complaint was requested within the time limited by the three-year statute of limitations. However, whatever the reason, the extension granted was for a period of 21 days and was in violation of G.S. ยง 1-121, which was in effect until repealed effective 1 January 1970 and which provided for a maximum extension of 20 days. The clerk was without authority to grant an extension for more than 20 days and his order for an extension of 21 days was of no effect. See Deanes v. Clark, 261 N.C. 467, 135 S.E.2d 6 (1964). Plaintiff argues that the matter is still within the discretion of the trial court and that he abused that discretion in failing to enter a nunc pro tunc order which would have brought plaintiff's claim within the period of the statute of limitations. We are of the opinion that the court has no discretion when considering whether a claim is barred by the statute of limitations. It is clear that a judge may not, in his discretion, interfere with the vested rights of a party where pleadings are concerned. State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967). It is equally clear that the statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Wilkes County v. Forester, 204 N.C. 163, 167 S.E. 691 (1933).

Therefore, the crucial question is what date should be used to determine whether plaintiff's claim is barred, the date summons was issued or the date the complaint was filed. The complaint was verified on 19 December 1969, more than 20 days from the issuance of summons and one day more than the statutory maximum permitted. Where plaintiff fails to comply with the statutory provisions relating to such extensions, the date the complaint was filed must be used in determining whether the statute of limitations is applicable. See Roberts v. Coca-Cola Bottling Co., 257 N.C. 656, 127 S.E.2d 236 (1962). The complaint was filed after the statute of limitations had run and plaintiff's claim is barred thereby.

In Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957), Bobbitt, J. (now C. J.), said in speaking for the Court:

"Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff's cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all." "The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Butler v. Bell, 181 N.C. 85, 106 S.E. 217. In some instances, it may operate to bar the maintenance of meritorious causes of action. When confronted with such a cause, the urge is strong to write into the statute exceptions that do not appear therein. In such case, we must bear in mind Lord Campbell's caution: `Hard cases must not make bad law.'"


MALLARD, C. J., and GRAHAM, J., concur.

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