[Download] "Congleton v. City of Asheboro and Carolina Power and Light Co." by Court of Appeals of North Carolina * Book PDF Kindle ePub Free
eBook details
- Title: Congleton v. City of Asheboro and Carolina Power and Light Co.
- Author : Court of Appeals of North Carolina
- Release Date : January 24, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 67 KB
Description
The only question before us is whether plaintiffs claim has been barred by the statute of limitations, as defendants contend it is. From the record it appears that the summons was issued and the request for extension of time within which to file a complaint was requested within the time limited by the three-year statute of limitations. However, whatever the reason, the extension granted was for a period of 21 days and was in violation of G.S. 1-121, which was in effect until repealed effective 1 January 1970 and which provided for a maximum extension of 20 days. The clerk was without authority to grant an extension for more than 20 days and his order for an extension of 21 days was of no effect. See Deanes v. Clark, 261 N.C. 467, 135 S.E.2d 6 (1964). PLaintiff argues that the matter is still within the discretion of the trial court and that he abused that discretion in failing to enter a nunc pro tunc order which would have brought plaintiffs claim within the period of the statute of limitations. We are of the opinion that the court has no discretion when considering whether a claim is barred by the statute of limitations. It is clear that a judge may not, in his discretion, interfere with the vested rights of a party where pleadings are concerned. Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967). It is equally clear that the statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense. Wilkes County v. Forester, 204 N.C. 163, 167 S.E. 691 (1933).