Sawyer v. Cowell

86 S.E.2d 431 (1955)

241 N.C. 681

Howard M. SAWYER v. Sue D. COWELL (Original Party Defendant) and V. S. Cowell, Administrator of the Estate of Sue D. Cowell, deceased, and V. S. Cowell, Individually (Additional Party Defendant).

No. 20.

Supreme Court of North Carolina.

March 23, 1955.

*432 Jennette & Pearson, Elizabeth City, for plaintiff, appellant.

R. Clarence Dozier, LeRoy & Godwin, Elizabeth City, for defendant, appellee.

DENNY, Justice.

The appellant concedes that the attempted service on V. S. Cowell as administrator of the estate of Sue D. Cowell was a nullity and, therefore, totally void. He contends, however, that V. S. Cowell is the real party in interest and should be made the party defendant by proper amendment since he acquired the locus in quo with full knowledge of the pending litigation.

It is provided in G.S. § 1-74 that, "No action abates by the death, or disability of a party, or by the transfer of any interest therein, if the cause of action survives, or continues. In case of death, except in suits for penalties and for damages merely vindictive, or in case of disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued, by, or against, his representative or successor in interest. * * *"

The law is settled with us that an action which survives disability or death does not abate until a judgment of the court is entered to that effect. Rogerson v. Leggett, 145 N.C. 7, 58 S.E. 596; Moore v. Moore, 151 N.C. 555, 66 S.E. 598.

In the present action, the court, after finding the facts, sustained the defendant's plea in abatement. The facts disclose that the action was originally instituted on 28th September, 1946; that complaint and answer were duly filed and that the original defendant died on 7th October, 1947. No effort was made to make her administrator a party defendant until 25th August, 1952, approximately two years after the estate had been administered, the final account filed and the administrator *433 discharged. Likewise, the plaintiff made no effort to make V. S. Cowell, the sole heir of Sue D. Cowell, a party defendant until after the expiration of nearly seven years from her death. Moreover, there is nothing in the record before us to indicate that V. S. Cowell knew anything about this litigation which was pending in Camden County, prior to 17th August, 1953, the date on which he was served with a purported summons which appellant now admits was a nullity. In light of these facts, an abuse of discretion in sustaining the plea in abatement has not been made to appear. Rogerson v. Leggett, supra [145 N.C. 7, 58 S.E. 597].

In the last cited case the Court said: "Certainly the law does not contemplate that the plaintiff may keep his action in a semidormant condition for seven years, and then, when it suits his pleasure or possibly his interest, call the heir at law into court, to find that by a legal fiction he has been deprived of his defenses, and called to answer, when, by the lapse of time he has become disabled to make good his defense, or that which his ancestor may have made. The liberal provisions of the statute permitting the continuation of the action after the death of the defendant should not be permitted to work out such results."

Furthermore, it will be noted that the plaintiff not only sought in the court below to make V. S. Cowell the party defendant, but also to amend his complaint and set up a claim for rents and profits received by V. S. Cowell, as well as for rents and profits received by him as administrator of the estate of Sue D. Cowell, including such rents and profits as he may have received as agent for Sue D. Cowell prior to her death. However, the refusal of the court below to make V. S. Cowell a party defendant, but, on the contrary, to sustain his plea in abatement, makes the question as to the plaintiff's right to amend academic. Even so, had the court allowed the motion to make V. S. Cowell the party defendant in this action, whether or not an amendment to the plaintiff's pleadings should have been allowed, would have raised a question to be determined in the discretion of the court. G.S. § 1-163; Parker v. Mecklenburg Realty & Ins. Co., 195 N.C. 644, 143 S.E. 254. A discretionary ruling on a motion to amend pleadings is not reviewable on appeal. Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843.

The ruling of the court below will be sustained.

Affirmed.

BARNHILL, C. J., and DEVIN and PARKER, JJ., took no part in the consideration or decision of this case.