Opinion
(January Term, 1867.)
Where a party to a suit had died in June, 1864: Held, that under the ordinance of the Convention of 23 June, 1866, providing that the time which had elapsed since 1 September, 1861, should not be counted for the purpose of barring actions or presuming the abandonment or satisfaction of rights, a judgment given at Fall Term, 1866, that such suit had abated, was erroneous.
( Neely v. Craige and Hall, ante, p. 187, cited and approved.)
EJECTMENT, commenced in the Superior Court of BURKE County, at Fall Term, 1857. The defendant, Colonel C. M. Avery, was killed in battle in June, 1864, and at Fall Term, 1867, of the Superior Court of McDOWELL, whither the suit had been removed, his Honor, Mitchell, J., on motion by the counsel for the defendant, adjudged that as two terms of the court had elapsed since the death of the defendant, the suit had abated.
No counsel for plaintiff. (239)
Logan and Avery for defendant.
From this judgment the plaintiff appealed.
Our Statute (Rev. Code, ch. 1, sec. 1), provides that no suit shall abate by reason of the death of either party: "Provided, however, that application be made to the court wherein the process is pending within two regular terms of the court after such death."
The case before us states that" two terms of the court had been held" after the death of the defendant; and, therefore, his Honor held that the suit abated.
The ordinance of the convention entitled "An ordinance to change the jurisdiction of the courts," section 20 (passed 23 June, 1866), provides: "That all acts and parts of acts suspending the statutes of limitation in the Revised Code are hereby repealed, except as herein provided: Provided, that the time elapsed since 1 September, 1861, barring actions or suits, or presuming the abandonment or satisfaction of rights, shall not be counted."
This ordinance prevents the suit from abating. It confers no new rights, but it preserves existing ones. See the case of Neely v. Craige and Hall, ante, p. 187, in which this ordinance and the acts of February, 1863, and of 1866 are construed.
PER CURIAM. There is error.
Cited: Hinton v. Hinton, post, 414; Den v. Love, post, 436; Johnson v. Winslow, 63 N.C. 553; Donoho v. Patterson, 70 N.C. 656; Benbow v. Robbins, 71 N.C. 339; Pearsall v. Kenan, 79 N.C. 474.
(240)