Williams v. Thompson, 227 N.C. 166, 41 S.E.2d 359 (N.C., 1947)
41 S.E.2d 359
227 N.C. 166
WILLIAMS .
v.
THOMPSON et al.
No. 451.
Supreme Court of North Carolina
Feb. 26, 1947.
.
[41 S.E.2d 360]
Appeal from Superior Court, Wake County; C. Everett Thompson, Judge.
Special proceeding to sell land to make assets by T. Lacy Williams, administrator of the estate of James H. Thompson, against Sarah Thompson, the City of Raleigh and others. From a judgment denying second named defendant’s motion to strike plaintiff’s reply, such defendant appeals.
Affirmed.
Special proceedings to sell land to make assets, heard on motion to strike plaintiff’s reply.
In his petition plaintiff alleges that the City of Raleigh “has a claim of an undetermined amount against said estate for paving assessments and taxes.” The city, answering, asserted a first lien for 1944 taxes in the total sum of $7.45, and a lien, second only to the lien for taxes, against the first tract described in the petition for street assessments in the sum of $295.71, with interest from May 16, 1927, and a lien for charges for sewer connections in the amount of $24 and for water connections in the amount of $29.56, with interest from May 16, 1927. It prays (1) for judgment for said amounts, (2) that said judgment be declared a specific lien on said property, and (3) for the appointment of a commissioner to make sale.
The plaintiff, replying, pleads the ten-year statute of limitations, G.S. § 1-56, in bar of said defendant’s right to recover the pleaded street assessments and sewer and water connection charges. Thereupon, said defendant moved to strike plaintiff’s reply “upon the grounds that 1. No new matter was pleaded by said defendant in its answer, and Second that no affirmative relief was prayed by the said defendant in the said answer.”
The clerk denied the motion and defendant City of Raleigh appealed to the judge of the Superior Court. When the cause came on to be heard in the court below the judgment of the clerk was affirmed and said defendant appealed to this Court.
Murray Allen, of Raleigh, for plaintiff-appellee.
P. H. Busbee and John G. Mills, Jr., both of Raleigh, for appellant City of Raleigh.
BARNHILL, Justice.
On a motion to strike the test of relevancy of a pleading is the right of the pleader to offer in evidence at the trial the facts relied upon to sustain the plea which, if established, will constitute a cause of action or a defense. And so, if the ultimate fact pleaded in a reply is not inconsistent with the cause of action alleged in the complaint and constitutes a defense, in whole or in part, to a plea for affirmative relief set up in the answer, it should not be stricken. Patterson v. Southern R. Co., 214 N.C. 38, 198 S.E. 364; Virginia Trust Co. v. Dunlop, 214 N.C. 196, 198 S.E. 645; Pemberton v. City of Greensboro, 203 N.C. 514, 166 S.E. 396.
The right to reply is not restricted to cases in which the defendant pleads a counterclaim. G.S. §§ 1-140, 1-141. If it alleges facts, upon the proof of which the court should give some relief, it is properly filed. Alamance Lumber Co. v. Edwards, 217 N.C. 251, 7 S.E2d 497.
The lapse of time does not discharge the liability. It merely bars recovery. Service Fire Insurance Co. of New York v. Horton Motor Lines, Inc., 225 N.C. 588, 35 S.E.2d 879. Hence the statutes of limitations (except when annexed to the cause of action itself, Hanie v. Penland, 193 N.C. 800, 138 S.E. 165) are not available to a litigant as a defense unless pleaded. Service Fire Insurance Co. of New York v. Horton Motor Lines, Inc., supra;
[41 S.E.2d 361]
New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242; Marshall Motor Co. v. Universal Credit Co., 219 N.C. 199, 13 S.E.2d 230.
Here the petitioner alleges the existence of the city’s claim without admitting its amount or validity. When the city filed an answer asserting a lien for taxes, street assessments, and other items, and prayed judgment therefor, the plaintiff, for the first time, was in a position to plead the bar of the ten-year statute of limitations. This plea was properly made by way of reply to the answer.
The judgment below is affirmed.