Moore v. City of Charlotte

ClakksoN, J. Where the defendant properly pleads a statute of limitations tbe burden is on the plaintiff to show that the action was brought within the time limit fixed by the statute pleaded, or in other words it is not barred by the statute that is pleaded. Tillery v. Lumber Co., 172 N. C., 296; Marks v. McLeod, 203 N. C., at p. 258-9. Plaintiff contends: “The only question arising in this case, and presented to the Supreme Court upon appeal, is whether or not the plaintiff’s cause of action is barred by the statute of limitations.” We think it is. The extension of the city limits was 1 January, 1928. The commencement of plaintiff’s action was 20 August, 1930, a period of 2 years, 7 months and 19 days. N. C. Code, 1931 (Michie), 442, is as follows: “Within two years— All claims against counties, cities and towns of this State shall be presented to the chairman of the board of county commissioners, or to the chief officers of the cities and towns, within two years after the maturity of such claims, or the holders shall be forever barred from a recovery thereon.” “The obvious purpose of the law is to enable those municipal bodies mentioned in it to ascertain and make a record of its valid outstanding obligations, and to separate them from such as are spurious or tainted with illegality and denounced in the Constitution.” Wharton v. Commissioners, 82 N. C., 12, 16. “This is a statute of limitation, and such claims against the county should be presented within two years after maturity.” Lanning v. Commissioners, 106 N. C., 505, 511. Board of Education v. Greenville, 132 N. C., 4; Dockery v. Hamlet, 162 N. C., 118. The pipe payment is of no avail to plaintiff as plaintiff presented no claim under the statute. Abbott Realty Co. v. Charlotte, 198 N. C., 564, and Stephens Co. v. Charlotte, 201 N. C., 258, are distinguishable from this action. As to tort actions “no action for damages against said city of any character whatever to either person or property,” etc. Chap. 251, sec. 15, Private Laws of 1911. The time limit in the above act is six months in which to give notice “date and place of happening or infliction of such injury,” etc. The above cited law, supra, relates to the city of Charlotte, N. C. Woods v. Durham, 200 N. C., 608. Again defendant contends: “All rights and privileges exercised by defendant over plaintiff’s property are granted in a written contract between plaintiff and defendant.” It is not necessary to consider this defense of the city as to this aspect. *40 From the record it appears that plaintiff “has slept” on what rights, if any, he had. The defendant was not bound to do so, but pleads the statute, supra, which we think available in this action. The judgment of the court below is Affirmed.