Grimes v. County of Beaufort

Supreme Court of North Carolina

Grimes v. County of Beaufort

10 S.E.2d 640, 218 N.C. 164, 1940 N.C. LEXIS 112

CourtSupreme Court of North Carolina

DecidedSeptember 18, 1940

StatusPublished

Cited by9 cases

This text of 10 S.E.2d 640 (Grimes v. County of Beaufort) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Grimes v. County of Beaufort, 10 S.E.2d 640, 218 N.C. 164, 1940 N.C. LEXIS 112 (N.C. 1940).

Pincite

Opinion

BarNHill, J.

The plaintiff in his complaint lists twenty-one different transactions in which he rendered services to the county, exclusive of his appearance as counsel in the action against the sinking fund commissioner and his sureties and in addition to certain collections made on the judgment rendered in the civil action. These various items extend over a period from December, 1936, to January, 1938.

It may not be said as a matter of law that the plaintiff’s cause of action does not require the consideration of a long account. C. S., 573. Therefore, defendants’ exception to the order of reference on this ground cannot be sustained.

But the defendants contend that they have interposed a plea in bar and that an order of reference prior to the adjudication of this plea was erroneous.

*166 The plea in bar is to the claim for compensation for services rendered in the civil action, the defendants alleging that such suit “was terminated by a final judgment in that cause at the December Term, 1936, Reaufort County Superior Court, and said case went off the docket and all attorney services were complete, at which time plaintiff’s cause of action against these defendants, if any, accrued, but that plaintiff failed to present any claim for services at that time or at any other time until May 1, 1939, and that more than two years have elapsed since the plaintiff’s cause of action accrued, and the defendants plead this lapse of time in bar of plaintiff’s recovery.” The plea is not directed to the claim of plaintiff for compensation for services rendered subsequent to the final termination of the action. Thus it appears that the plea in bar does not extend to the whole cause of action and, if sustained, would not defeat plaintiff’s claim in its entirety.

It is well settled in this jurisdiction that a plea in bar will repel a motion for a compulsory reference, and no order of reference should be entered until the issue of fact raised by the plea is first determined, only when such plea extends to the whole cause of action so as to defeat it absolutely and entirely. To defeat a reference the plea must be such that if found in favor of the pleader it will operate to bar the entire cause of action and put an end to the case, leaving nothing further to be determined. It must be a plea that denies the plaintiff’s right to maintain the action, and which, if established, will destroy the action. Oldham v. Rieger, 145 N. C., 254, and cases there cited; Alley v. Rogers, 170 N. C., 538, 87 S. E., 326; Reynolds v. Morton, 205 N. C., 491, 171 S. E., 781, and cases there cited; Brown v. Clement Co., 217 N. C., 47; McIntosh, P. & P., sec. 523.

The judgment below is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

BarNHill, J.

The plaintiff in his complaint lists twenty-one different transactions in which he rendered services to the county, exclusive of his appearance as counsel in the action against the sinking fund commissioner and his sureties and in addition to certain collections made on the judgment rendered in the civil action. These various items extend over a period from December, 1936, to January, 1938.

It may not be said as a matter of law that the plaintiff’s cause of action does not require the consideration of a long account. C. S., 573. Therefore, defendants’ exception to the order of reference on this ground cannot be sustained.

But the defendants contend that they have interposed a plea in bar and that an order of reference prior to the adjudication of this plea was erroneous.

*166 The plea in bar is to the claim for compensation for services rendered in the civil action, the defendants alleging that such suit “was terminated by a final judgment in that cause at the December Term, 1936, Reaufort County Superior Court, and said case went off the docket and all attorney services were complete, at which time plaintiff’s cause of action against these defendants, if any, accrued, but that plaintiff failed to present any claim for services at that time or at any other time until May 1, 1939, and that more than two years have elapsed since the plaintiff’s cause of action accrued, and the defendants plead this lapse of time in bar of plaintiff’s recovery.” The plea is not directed to the claim of plaintiff for compensation for services rendered subsequent to the final termination of the action. Thus it appears that the plea in bar does not extend to the whole cause of action and, if sustained, would not defeat plaintiff’s claim in its entirety.

It is well settled in this jurisdiction that a plea in bar will repel a motion for a compulsory reference, and no order of reference should be entered until the issue of fact raised by the plea is first determined, only when such plea extends to the whole cause of action so as to defeat it absolutely and entirely. To defeat a reference the plea must be such that if found in favor of the pleader it will operate to bar the entire cause of action and put an end to the case, leaving nothing further to be determined. It must be a plea that denies the plaintiff’s right to maintain the action, and which, if established, will destroy the action. Oldham v. Rieger, 145 N. C., 254, and cases there cited; Alley v. Rogers, 170 N. C., 538, 87 S. E., 326; Reynolds v. Morton, 205 N. C., 491, 171 S. E., 781, and cases there cited; Brown v. Clement Co., 217 N. C., 47; McIntosh, P. & P., sec. 523.

The judgment below is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

10 S.E.2d 640, 218 N.C. 164, 1940 N.C. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grimes-v-county-of-beaufort-nc-1940.

Opinion

Related

Cite This Page — Counsel Stack