United States Steel Corp. v. Lassiter

221 S.E.2d 92, 28 N.C. App. 406, 1976 N.C. App. LEXIS 2709

Opinion

BRITT, Judge.

First, defendant contends the trial court erred in granting summary judgment for the reason that the pleadings raised a genuine issue as to a material fact, namely, whether defendant is indebted to plaintiff in any amount. We find no merit in the contention.

While the party moving for summary judgment has the burden of positively and clearly showing that there is no genuine issue as to any material fact, Brawley v. Heymann, 16 N.C. App. 125, 191 S.E. 2d 366 (1972), cert. denied 282 N.C. 425, 192 S.E. 2d 835 (1972), when the movant carries that burden the opposing party may not rest upon the mere allegations of his pleading but must respond with affidavits or other evidentiary matter which sets forth specific facts showing that there is a genuine issue for trial. G.S. 1A-1, Rule 56 (e).

In this case, when plaintiff, at the hearing on its motion, submitted its verified complaint including an itemized statement of the account, defendant’s answers to interrogatories, and the affidavits of Pitt-Greene’s former bookkeeper and plaintiff’s district credit manager, it met its burden and that burden was not overcome by the general denial in defendant’s answer and his affidavit which was a mere reaffirmance of the general denial.

Defendant further contends that the trial court erred in rejecting his plea of the three years’ statute of limitations. This contention has no merit.

It is well settled in this jurisdiction that each payment made on a current account starts the running of the statute of limitations anew as to all items not barred at the time of payment. Little v. Shores, 220 N.C. 429, 17 S.E. 2d 503 (1941) ; Supply Company v. Banks, 205 N.C. 343, 171 S.E. 358 (1933) ; Supply Company v. Dowd, 146 N.C. 191, 59 S.E. 685 (1907). Plaintiff’s verified statement discloses that no item was as much as three years old when a payment was made and the suit was instituted within three years after the last payment was made.

The judgment appealed from is

Affirmed.

Chief Judge Brock and Judge Morris concur.