JAMES EDWARD TEELE v. CLAYBORNE K. KERR and LUTHER W. KERR, 261 N.C. 148

Sharp, J. Where the statute of limitations is properly pleaded, and all the facts with reference to it -are admitted, the question whether it constitutes a bar 'becomes a matter of law. Mobley v. Broome, 248 N.C. 54, 102 S.E. 2d 407. This appeal presents one question: Does the statute limiting the time to bring an action on a judgment to ten years from the date of its rendition, -be'gin to .run' as against an infant where the judgment was procured on his behalf by a next friend appointed for that purpose?

If the ¡answer to this question is NO, G.S. 1-17 would permit the plaintiff to- ¡bring an action on the judgment secured when ¡he was nine years old within the time limited by- G.S. 1-47 (1), -i.e., ten years, after be became twenty-one years old. To answer this question we must first consider the nature of an action upon a judgment. “When ¡a judgment is obtained, the precedent cause of action is merged into and extinguished 'by the judgment.' 2 Black, Judgm. §§ 674, 675, 677; Freem. Judgm. §§ 215-,-216.

The judgment'is a debt of record, — a new cause of action, — upon.wliich. a new suit may be maintained.” Williams v. Merritt, 109 Ga. 213, 34 S.E. 312. In Reid v. Bristol, 241 N.C. 699, 86 S.E. 2d 417, it was pointed out iby Bobbitt, J. that in this State, since 1866, if not before, the only way to secure a judgment on a judgment was by an independent action commenced as is every action to (recover judgment on a debt.

Hence the suit instituted by plaintiff ion February 28,1962 on the judgment was a new action on a debt; it was separate and distinct from the personal injury suit in which it had (been obtained on April 19, 1948. The next question is whether the authority .and duties of a next friend terminate when he reduces plaintiff’s claim to. judgment or whether his authority continues to collect the judgment and to bring am action on it for that purpose if necessary. If the authority of a next friend terminates with the judgment, plaintiff may maintain this action; if, 'however, it continues, he may not. Rowland v.

Beauchamp, 253 N.C. 231, 116 S.E. 2d 720. It is the rule in North Carolina that, except in suits for realty where the legal title is in the ward, the statute of limitations begins to run against an infant who is represented by a general guardian as to any action which the guardian could or should bring, at the túne the cause of action ¡accrues. If he has no guardian ¡at that time, the statute begins to .run upon the ¡appointment of >a guardian or upon the removal of his disability as provided in G.S. 1-17 whichever occurs first. Trust Co. v. Willis, 257 N.C. 59, 125 S.E. 2d 359.

There is, (however, a vast difference between the authority of a general guardian and a next friend. A .guardián is authorized by G.S. 30-20 to take possession of all his estate for the use of his ward and to 'bring all necessary actions therefor. G.S. 1-64 merely authorizes infant plaintiffs without a general guardian to appear by their next friend when it is necessary for them to prosecute an action. The power of a next friend is ¡strictly limited to the performance of the precise duty imposed upon him by the order ¡appointing him, that is, the prosecution of the particular action in which he was appointed.

It is his duty to represent the infant, see that the witnesses are present ¡at the trial of the infant’s case, .and to do .all things which are required to secure a judgment favorable to the infant. Roberts v. Vaughn, 142 Term. 361, 219 S.W. 1034, 9 A.L.R. 1528. When he has done that, his ¡authority in the suit is at ¡an end unless some attack should be made upon the judgment ¡by motion in the cause.

In the absence ¡of a .special statute .it is the general rule that the next friend of an infant ¡has no authority to receive payment of the judgment he hais secured for the infant. “Either or ¡both of two¡ reasons are given for this rule. First, the ¡duties of the next friend or guardian ad litem are coterminous with the ¡beginning -and end of the prosecution of the suit, iso that upon entry of final judgment he has no further interest dm the case.

Second, payment to the next friend or guardian ad litem anight result in the loos of the benefit of the recovery, since a 'bond is not ordinarily required of 'him in prosecuting the action.” 27 Am. Jur., Infants § 134; Paskewie v. East St. L. & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035, L.R.A. 1918 C. 52. Under our statutes only the 'derk or the legal guardian of an infant has authority to receive payment 'and satisfy a judgment rendered in favor of an infant. G.S. 1-39. See Tate v. Mott, 96 N.C. 19, 2 S.E. 176.

In practice, the defendant pays the judgment to the Clerk of the Superior Court who holds the funds until the minor becomes twenty-one or until a general guardian is appointed for ¡him unless the sum is $1,000.00 or less when he miay disburse it himself under the terms of G.S. 2-53. The status, function, ¡and authority of a next friend of ¡a minor were reviewed in Johnston County v. Ellis, 226 N.C. 268, 38 S.E. 2d 31. In that case E. was appointed next friend to act for his minor brothers and rasters, movants in a tax foreclosure action to iset aside a tax foreclosure.

Thereafter the mortgagee also intervened and filed a similar motion. A judgment was entered setting -aside -all orders and decrees made in the ease as well as the deed to the purchaser. Ten months later, without notice to the next friend, the Clerk -of the Superior Court determined -the amount due on the mortgage, entered judgment for it against the owners of the land, including the minors, -and appointed a commissioner to sell the land under the mortgage. Approximately ten years -later the minors, having -become of age, moved to set aside this judgment and the sale made -under it.

The Superior Court denied the motion; the Supreme Court reversed, saying: “A next friend is not an all-time and all-purpose representative through whose -action or failure to act his infant suitors may -be bound by orders and judgments which have no connection with the purpose of his appointment, or the rights of the minors which by virtue of such appointment it is hiis office to assert. The scope of his representation lies within and is determined by that purpose, the necessities of its prosecution and the procedure reasonably incident thereto. In 27 Am.

Jur., .p. 839, sec. 118, is a summarized expression of the law as we -conceive it to be here: ‘The next friend has full power to act for the purpose of securing the infant’s rights, and may do all things that are necessary to this end, although hi-s -power is strictly limited to the .performance of the precise duty imposed upon him iby laiw.’ Roberts v. Vaughn, 142 Tenn., 316, 219 S.W., 1034, 9 A.L.R., 1528.

No doubt in the assertion ¡of ¡such ¡right the next fri'endi may have to defend against incidental or opposing rights, such as offsets, counterclaims, or other defenses or demands connected with the original claim. “The next friend came into' the tax suit for the purpose of making a motion to set aside a judgment and 'annulling a deed in the tax ¡suit, in which the minors were admittedly equitable owners of the proper,ty and at the time unrepresented.

His appointment did not require him to defend against the 'foreclosure suit thrust into this proceeding in the manner stated, and his representation of the minors in that matter did not legally exist. “Moreover, the record discloses that Ellis had ¡successfully accomplished his mission as next friend, performed all the duty imposed upon him by law, ¡and his office as next friend had become functus officio.

If the holder of the mortgage desired to foreclose, it was necessary to do so in an orderly proceeding, instituted for ■that purpose, and to secure the appointment of a guardian ad litem to defend the owners of the equitable estate.” The reasoning of the language quoted above is applicable to this case. We hold that the .authority of plaintiff's next friend in the personal injury case 'ended on April 19, 1948 'and that this suit, instituted on the judgment obtained in the former action, is a neiw -and independent action.

The plaintiff, having instituted it within ten years after reaching his majority, is entitled to maintain it. This holding does not impinge upon any statement in Rowland v. Beauchamp, supra, as defendant contends. Rowland involved a question of the application of the ¡statute of limitations to the specific action wihiich the next friend was appointed by the court to bring. The instant case is a new -and independent action; hence, Rowland is inapplicable. The judgment of the lower court is Affirmed.