Galligan v. Smith

188 S.E.2d 31 (1972)

14 N.C.App. 220

Jettie Brady GALLIGAN v. Harold P. SMITH.

No. 7215SC157.

Court of Appeals of North Carolina.

April 26, 1972.

Certiorari Denied June 16, 1972.

*33 Ottway Burton, Asheboro, for plaintiff appellant.

Perry C. Henson, and Daniel W. Donahue, Greensboro, for defendant appellee.

Certiorari Denied by Supreme Court June 16, 1972.

MALLARD, Chief Judge.

G.S. § 1-25, repealed by the General Assembly in 1967 effective 1 January 1970, read as follows:

"New action within one year after nonsuit, etc.If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis." (Emphasis added.)

*34 G.S. § 1A-1, Rule 41, became effective 1 January 1970 and provides:

"(a) Voluntary dismissal; effect thereof. * * * If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. * * * * * * (d) Costs.A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall dismiss the action." (Emphasis added.)

Chapter 803 of the Session Laws 1969 amended Chapter 1A of the General Statutes to read as follows:

"Sec. 10.This Act shall be in full force and effect on and after January 1, 1970, and shall apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date."

When the new Rules of Civil Procedure came into effect, the plaintiff in the case before us had already taken a voluntary nonsuit in her original action against the defendant Smith but had not brought her new action instituted 19 January 1970. When the new action was instituted, the costs in the original action had not been paid. Nothing else appearing, the result is the same under either the old statute, G.S. § 1-25, or new Rule 41(d): Upon motion of the defendant, dismissal was proper on the grounds that this new action was instituted before the costs in the original action were paid.

Attorney for the plaintiff, however, relies primarily upon the contention that he made a "reasonable or diligent effort" to pay the costs of the prior action before instituting the action of 19 January 1970. The only evidence adduced at the hearing to support this contention tended to show that on Monday, 19 January 1970, plaintiff's attorney's secretary called the office of the Clerk of Superior Court in Orange County and she testified:

"I asked to speak to the Clerk and when I told her that I wanted to get a bill of costs in the case of `Jettie Brady versuswell, actually, it was "Jettie Brady Galligan" at that time tooversus Town of Chapel Hill and Harold P. Smith', and when I told her what I wanted she told me that Mr. Archie Williams always figured the costs and that he was out of the office sick and that he would be back on Wednesday and would send the costs probably by Friday. I never got the bill of costs from the Clerk of Superior Court's office of Orange County on this case, `Jettie Lee Brady Galligan vs. Town of Chapel Hill and Harold P. Smith' until you (plaintiff's attorney) called Friday, September 17, 1971."

The plaintiff's attorney's secretary did not testify that she told the person she talked to in the Clerk's office in Orange County that she wanted to pay the costs; she merely stated that she wanted "to get a bill." There is no testimony that an offer to pay the costs was made prior to or on 19 January 1970, nor does it appear that any other effort of any nature was made before or after this time to pay the costs of the prior action until 17 September 1971, on the same date, but after defendant's motion to dismiss had been filed.

*35 Judge Hobgood properly concluded under the facts found (which are based on competent evidence) that "the plaintiff did not make any reasonable or diligent effort to pay the costs prior to the institution of the (present) action." The case of Hunsucker v. Corbitt, 187 N.C. 496, 122 S.E. 378 (1924), not cited by plaintiff but pertinent to the case before us, is distinguishable. In Hunsucker, the uncontroverted evidence tended to show that one of the plaintiffs had personally gone to the clerk's office and had repeatedly offered to pay the costs of the first action, and that the clerk had assured him that an entry of the payment would be made for which the plaintiff could later mail in a check. The Court said, referring to the provisions of C.S. 415 (later G.S. § 1-25), "This cost must be paid or some good cause shown." The efforts of the plaintiff in Hunsucker were held to be a sufficient excuse for the failure to pay the costs of the prior action. We do not think that a single telephone call to the clerk's office nearly a year after the dismissal of the prior action and a year and a half before the costs were actually paid rises to the dignity of "some good cause shown." We certainly do not agree with plaintiff's contention that all that was "humanly possible" was done to tender payment of the costs prior to the institution of the present lawsuit. See also, Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112 (1959) and Osborne v. Southern R. R. Co., 217 N.C. 263, 7 S.E.2d 500 (1940).

The remainder of plaintiff's contentions warrant little discussion. Plaintiff contends that, by his inaction, defendant "waived" his right to move to amend his answer. This contention is without merit. The record in the case discloses no facts or circumstances which would raise the question of "waiver" or which would tend to show that defendant took any action which could have misled the plaintiff. We further hold that plaintiff's contention that the hearing judge abused his discretion in allowing defendant to amend his answer pursuant to G.S. § 1A-1, Rule 15, is also without merit. The trial court has broad discretion in permitting or denying amendments to the pleadings.

In the signing and entering of the orders appealed from, no error is made to appear.

Affirmed.

MORRIS and PARKER, JJ., concur.