Smith v. . Gordon

BeogdeN, J. The two determinative questions of law presented by the record are: 1. What is the effect of the distress judgment rendered in West Virginia in September, 1926? 2. Do the letters written by the defendant prevent the bar of the statute of limitations? The West Virginia judgment, upon its face, is a proceeding in rem in the nature of an attachment and was obtained without personal service upon the defendant. Such a judgment “is conclusive evidence that the debt sued on was due to the plaintiff in it, to the value of the property attached, but of nothing more.” Peebles v. Patapsco Guano Co., 77 N. C., 233; Warlick v. Reynolds, 151 N. C., 606, 66 S. E., 657; Johnson v. Whilden, 166 N. C., 104, 81 S. E., 1057. Consequently, the plaintiff’s suit cannot be maintained upon the judgment, but must of necessity rest upon the debt. As against the debt the defendant pleads the statute of limitations. In actions of debt the statute of limitation of the forum *698 must govern. Tieffenbrun v. Flannery, 198 N. C., 397, 151 S. E., 857. Obviously tbe three-year statute of limitations bars the debt unless the letters set out in the record are sufficient to remove the bar and keep the debt alive. C. S., 416, prescribes the statutory method of arresting the running of the statute. The accepted principle of law was stated in Phillips v. Giles, 175 N. C., 409, 95 S. E., 772, as follows: “In order to revive a debt which is barred by the statute, there should be an express unconditional promise to pay the same or that there should be a definite, unqualified acknowledgment of the debt as a subsisting obligation and from which the law will imply a promise to pay.” Wells v. Hill, 118 N. C., 900, 24 S. E., 771; Irvin v. Harris, 182 N. C., 647, 109 S. E., 867. Manifestly the letter of 24 July, 1926, even if it amounted to an express promise to pay the debt, was ineffective on 23 May, 1930, when the present suit was instituted. Moreover, the letter of 19 December, 1929, is not such an acknowledgment of a subsisting obligation as the statute or decisions contemplate as sufficient and adequate to tear down the bar of limitation. Therefore, the ruling of the trial judge was correct. The court is not inadvertent to the fact that the action was instituted by Smith as agent for Moore, but it is not deemed necessary to discuss this phase of the case. Affirmed.