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127 S.E.2d 236 (1962)

257 N.C. 656


No. 89.

Supreme Court of North Carolina.

September 19, 1962.

*237 Williams, Williams & Morris, by Robert R. Williams, Jr., Asheville, for defendant appellant.

Willson & Riddle, by Robert B. Willson, Asheville, for plaintiff appellee.

HIGGINS, Justice.

When the summons and order extending the time for filing the complaint were served, the defendant entered a special appearance and moved to quash the service and dismiss the action, contending the plaintiff's application and order failed to state the nature and purpose of the suit as required by G.S. ยง 1-121. Before the hearing on the first motion, however, the defendant filed (conditionally) "Answer, including motion," denying the court had acquired jurisdiction over the defendant. However, the answer alleged the plaintiff's injury occurred August 8, 1958, and the plaintiff's cause of action based on breach of warranty was instituted on August 24, 1961, by filing the complaint; and that the lapse of more than three years barred recovery.

After this Court on the former appeal affirmed the order denying the motion to dismiss, a further hearing was held upon the complaint, answer, and admissions. The court overruled the plea of the statute *238 of limitations and held as a matter of law (1) the plaintiff's complaint was not different in nature from that authorized in the application and order; (2) that the complaint actually filed did not constitute the beginning of a new action as of its filing date; (3) the action upon implied warranty related back to the summons and thereby escaped the defendant's plea of the statute of limitations.

The facts being admitted, the applicability of the statute of limitations became a question of law. The application and order extending the time to plead were, as previously decided, barely sufficient to enable the plaintiff to file a complaint stating a cause of action for damages based on negligence. Such a complaint would relate back to the date of the summons. However, when the plaintiff failed to file a complaint based on negligence but elected to allege a cause based on breach of warranty, the new cause must be deemed to have been instituted on the date the complaint was actually filed. "In the absence of statute otherwise providing, the general rule is that an amendment introducing a new cause of action does not relate back to the commencement of the action, with respect to limitations, but is the equivalent of a new suit, so that the statute of limitations continues to run until the time of the filing of the amendment." * * * "In each instance, the ultimate determinative question is whether the amendment states a new cause of action." Stamey v. Membership Corp., 249 N.C. 90, 105 S.E.2d 282; George v. Atlanta & Charlotte R. R., 210 N.C. 58, 185 S.E. 431; Kinston v. Atlantic & N. C. R. R., 183 N.C. 14, 110 S.E. 645.

No reason suggests itself why the rule should be different when a plaintiff obtains leave to file an action in tort, does not do so, but instead files one in contract. The action in contract is instituted when the complaint is filed. "Recovery must be based on the cause of action alleged. It cannot rest on a different legal right." Wynne v. Allen, 245 N.C. 421, 96 S.E.2d 422.

For the reasons assigned, we hold the trial court should have entered judgment sustaining the plea of the statute of limitations and dismissing the action. The cause is remanded to the Superior Court of Buncombe County for the entry of such an order.


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