Williams v. Thompson

Barnhill, J.

On a motion to strike tbe test of relevancy of a pleading is tbe right of tbe pleader to offer in evidence at tbe trial tbe facts relied upon to sustain tbe plea which, if established, will constitute a cause of action or a defense. And so, if tbe ultimate fact pleaded in a reply is not inconsistent with tbe cause of action alleged in the complaint and constitutes a defense, in whole or in part, to a plea for affirmative relief set up in tbe answer, it should not be stricken.

Patterson v. R. R., 214 N. C., 38 , 198 S. E., 364 ;

Trust Co. v. Dunlop, 214 N. C., 196 , 198 S. E., 645 ;

Pemberton v. Greensboro, 203 N. C., 514 , 166 S. E., 396 .

Tbe right to reply is not restricted to cases in which tbe defendant pleads a counterclaim. G. S. 1-140, 1-141. If it alleges facts, upon tbe proof of which tbe court should give some relief, it is properly filed.

Lumber Co. v. Edwards, 217 N. C., 251 , 7 S. E. (2d), 497 .

*168 Tbe lapse of time does not discharge tbe liability. It merely bars recovery.

Insurance Co. v. Motor Lines, Inc., 225 N. C., 588 . Hence tbe statutes of limitations (except when annexed to tbe cause of action itself, Hanie v. Penland, 193 N. C., 800 , 138 S. E., 165 ) are not available to a litigant as a defense unless pleaded.

Insurance Co. v. Motor Lines, Inc., supra; New Hanover County v. Sidbury, 225 N. C., 679 ;

Motor Co. v. Credit Co., 219 N. C., 199 , 13 S. E. (2d), 230 .

Here tbe petitioner alleges tbe existence of tbe City's claim without admitting its amount or validity. When tbe City filed an answer asserting a lien for taxes, street assessments, and other items, and prayed judgment therefor, tbe plaintiff, for tbe first time, was in a position to plead tbe bar of tbe ten-year statute of limitations. This plea was properly made by way of reply to tbe answer.

Tbe judgment below is Affirmed.