Harrell v. Hilton Lumber Co., 172 N.C. 827 (1916)

Oct. 11, 1916 · Supreme Court of North Carolina

172 N.C. 827

E. HARRELL v. HILTON LUMBER COMPANY.

(Filed 11 October, 1916.)

Limitation of Actions — Record-—Date of Summons — Judicial Notice.

“Where tbe statute of limitations is relied on and tbe summons bas not been introduced in evidence, tbe Supreme Court, taking judicial notice of facts and entries of record, will ascertain tbe date of tbe summons as it there appears.

Civil actioN tried at January Term, 1916, of DupliN, before Allen, J., upon these issues:

1. Did tbe defendant wrongfully and unlawfully cut and remove timber from tbe lands of tbe plaintiff, as alleged in tbe complaint? Answer: “Yes.”

2. What damage, if any, is plaintiff entitled to recover of tbe defendant? Answer: “$90.”

From tbe judgment rendered, tbe defendant appealed.

Stevens & Beasley for plaintiff.

• E. K. Bryan and H. D. Williams for defendant.

BeowN, J.

This case involves tbe same controversies as tbe case of L. H. Bradshaw v. Hilton Lumber Co., at this term, ante, 219, except tbe point at which tbe diameter is to be taken is fixed in tbe deed, and is governed by what is said in tbe opinion in that case. Tbe only other assignment of error relates “to tbe statute of limitations, pleaded by tbe defendant. It was admitted upon tbe argument that tbe summons was not read in evidence and that if tbe Court can take notice of tbe summons and look at it as a part of tbe record, then tbe statute of limitations does not bar a recovery. Tbe summons was a part of tbe record which tbe Court will take notice of in order to ascertain when tbe action was commenced, as tbe courts will take judicial notice of facts and entries of record in tbe suit being tried. Tbe point is decided against tbe defendant in Harrington v. Wadesboro, 153 N. C., 437.

No error.