Alston v. Robertson, 233 N.C. 309 (1951)

March 7, 1951 · Supreme Court of North Carolina

233 N.C. 309

FELIX WILLIAMS (Since Deceased), W. T. ALSTON and RALPH ALSTON, Administrator of FELIX WILLIAMS, v. ANGIE H. ROBERTSON, A. J. ELLINGTON and Wife, UNDINE D. ELLINGTON.

(Filed 7 March, 1951.)

1. Reference § 4—

Where defendant pleads a statute of limitations, it is error for the court to order a compulsory reference without first disposing of the plea in bar.

a. Reference § 3—

An action in ejectment in which defendants plead the twenty (G.S. 1-39, G.S. 1-40) and the seven (G.S. 1-38) year statutes of limitation is not subject to compulsory reference. G.S. 1-189.

Appeal by defendants from. Nimocks, J., September Term, 1950, of WARREN.

Felix Williams, tbe original plaintiff, instituted this action in ejectment against the defendants, alleging he was the owner of a tract of land in the possession of defendants. Defendants’ answer denied the allegations of the complaint, and pleaded the twenty-year statutes of limitations, G.S. 1-39 and 1-40, as a bar to the plaintiff’s claim.

Thereafter Felix Williams died and W. T. Alston purchased his alleged title from his heirs, filing an amended complaint alleging title in himself. The defendants filed answer denying his title and again pleading the above statutes of limitations. By leave of court they later pleaded the seven-year statute, G.S. 1-38.

The case came on for trial and after hearing the testimony of one witness, the court ordered a compulsory reference. The plaintiffs and the defendants excepted. Defendants appealed to the Supreme Court, assigning error.

Kerr & Kerr and James D. Gilliland for plaintiffs, appellees.

Banzet & Banzet for defendants, appellants.

DeNny, J.

It appears on the face of the record that a compulsory reference was ordered without first disposing of the pleas in bar. This was error and the appellees so concede. Grady v. Parker, 230 N.C. 166, 52 S.E. 2d 273; Ward v. Sewell, 214 N.C. 279, 199 S.E. 28; Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641; McIntosh N. C. Prac. and Proc., section 523, p. 564.

Furthermore, the issues involved and the relief sought in this action, do not appear to be such as to justify or support an order of reference pursuant to the provisions of the statute, G.S. 1-189.

The order of reference will be vacated and tbe cause remanded for further proceedings in accord with the rights of the respective parties.

Error and remanded.