Home Real Estate, Loan & Insurance v. Locker

197 S.E. 555, 214 N.C. 1, 1938 N.C. LEXIS 240

• Court: Supreme Court of North Carolina
• Decided: June 15, 1938
• Status: Published

Opinion

BaRNHill, J.

Actions must be instituted in the name of the real party in interest. C. S., 446. Rogers v. Gooch, 87 N. C., 442; Rental Co. v. Justice, 211 N. C., 54; Ballinger v. Cureton, 104 N. C., 474.

The provisions of C. S., 2367, do not modify this rule in relation to suits in ejectment or for the collection of rents. Rental Co. v. Justice, supra; Martin v. Mask, 158 N. C., 436.

The court has the power to make additional parties plaintiff or defendant. C. S., 547. However, when the court makes a new party plaintiff it constitutes a new action against the defendant as to the new party and the action as to him does not relate back to the date of the institution of the original cause so as to deprive the defendants of the right to plead the statute of limitations in bar of recovery in such action. Goodwin v. Fertilizer Works, 123 N. C., 162; Reynolds v. R. R., 136 N. C., 345; Sams v. Price, 121 N. C., 392; Fishell v. Evans, 193 N. C., 660.

The cause was instituted 21 August, 1931, and the real party in interest was made a party plaintiff on 2 February, 1938, more tban six years after the rents for which, this suit was instituted became due. As the rental agent was not authorized to maintain this action and the real party in interest was made a party plaintiff more than three years after the maturity date of the amount which is the subject matter of the suit, it follows that the plea of the statute of limitations by the defendants is good. The charge of the court on the third issue was erroneous. The defendants’ motion to nonsuit should have been allowed.

Judgment should be entered dismissing the action at the cost of the plaintiffs.

Reversed.