Marshall Motor Co. v. Universal Credit Co.

DeviN, J. This appeal presents the question whether the plaintiff, having previously submitted to a voluntary nonsuit in the U. S. District Court in an action wherein more than fifteen thousand dollars was claimed as penalty for usury in numerous independent transactions, has the right, thereafter, to institute in the State court four separate suits embracing the identical items set out in the original action, the sum demanded in each case being less than three thousand dollars. In other words, may the plaintiff, having submitted to nonsuit upon the cause of action originally stated, embracing many independent transactions, be permitted to divide the cause of action into groups of items, and institute separate suits thereon? We think the plaintiff has the right to bring his suit in the manner and in the form he may elect, provided he properly states a cause of action, and that he may choose the forum to which jurisdiction of his cause appertains. Southern Rwy. Co. v. Miller, 217 U. S., 209; Friederichsen v. Renard, 247 U. S., 207; Wattman v. Union Central Life Ins. Co., 25 Fed. (2), 320. That facts sufficient to constitute causes of action are stated in the several complaints is not specifically controverted. Demurrer on that ground could not be sustained.' Appellant challenges plaintiff’s procedure here as insufficient to protect its asserted claims from the bar of the statute of limitations, and contends that the provisions of C. S., 415, extending the time within *202 which suit may be instituted for one year after nonsuit, have no application to the situation presented here. It is a well recognized rule of procedure that statutes of limitations, unless they are annexed to the cause of action itself, Hanie v. Penland, 193 N. C., 800, 138 S. E., 165, must be specifically pleaded to be available as a defense, McNeill v. Suggs, 199 N. C., 477, 154 S. E., 729, and that the question may not be raised by demurrer, Bacon v. Berry, 85 N. C., 124, or by preliminary motion to dismiss. Oldham v. Rieger, 145 N. C., 254, 58 S. E., 1091. Nor is the denial of a motion to dismiss ordinarily appealable. Johnson v. Ins. Co., 215 N. C., 120, 1 S. E. (2d), 381. However, it would seem that if the original action was brought in time, and that the instant cases were begun within one year of a voluntary nonsuit, upon the identical causes of action originally complained of, defendant’s objection to the ruling below would be without merit. Brooks v. Lumber Co., 194 N. C., 141, 138 S. E., 532; Blades v. R. R., 218 N. C., 702. The fact that plaintiff instituted an action 26 January, 1939, upon certain items, and thereafter took a nonsuit in March, 1939, does not affect the right of plaintiff to bring other suits within one year from the nonsuit in the original action, for the same cause of action. Trull v. R. R., 151 N. C., 545, 66 S. E., 586. The principle stated in Lumber Co. v. Trust Co., 179 N. C., 211, 102 S. E., 205, is inapplicable to the facts appearing on this record. In that case numerous transactions, so interlocked as to make them practically inseparable, were set up as constituting a mutual running account, and were thus interrelated. Here, the transactions were alleged to have consisted of separate and distinct conditional sales agreements and notes discounted, connected with sales of automobiles, each transaction independent of the other. The judgment of the Superior Court must be Affirmed.