Bacon v. . Berry

85 N.C. 124

• Court: Supreme Court of North Carolina
• Decided: October 5, 1881
• Status: Published

Opinion

Ashe, J.

This proceeding is in the nature of a creditor’s bill, filed under the act of 1871-72, ch, 213, and is for an account and settlement of the estate of the defendant’s intestate.

The matters set u,p in the first clause of the demurrer are insufficient to defeat the plaintiff’s action. Whether the judgment was dormant and the defendant had no right to issue execution thereon after the 10th day of August, 1873, or had no right to have the judgment transferred to the superior court and docketed, are questions totally irrelevant; and -for that reason, that clause of the demurrer should not have been sustained.

And the second cause of demurrer is not less untenable, for the cause assigned is that more than seven years have elapsed from the rendition of the judgment to the bringing of the action. It is in fact a plea of the statute of limitations, which must always be pleaded in the answer. It is an objection that can never be taken by demurrer. Green v. R. R. Co., 73 N. C., 524.

There is error. The judgment rendered below must be reversed, and this must be certified to the superior court of Orange county, that a procedendo may be issued to the probate court for that county.

Error, Reversed,