19 Colo. 559 | Colo. | 1894
delivered the opinion of the court.
On this appeal errors and cross errors are assigned. Plaintiff complains of the judgment of nonsuit as to causes of action numbered 1, 2, 8, 4, 5, 6, and 12; defendant complains of the verdict directed against it on the remaining causes of action, except cause numbered 7 ; it was agreed on the trial that the value of the grass destroyed was $80.00, and that plaintiff was entitled to recover that amount.
“ All actions and suits, for any penalty or forfeiture of any penal statute brought by this State, or any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the offense is committed and not after that time.” See General Statutes 1883, § 2170 ; 2 Mills’ An. Stats,. § 2907.
It requires no extended discussion to show that the act of 1887, upon which the last five counts of the complaint are based, is a penal statute. The act imposes a penalty upon a railroad company in a sum twice the full value of each animal killed for the failure of the company to comply with the terms of the statute in respect to recording a description of the animal and marking its hide ; and this, whether the killing was negligent or otherwise.
The statute is not like one intended to remedy some defect of the common law — as where a right of recovery is given to the widow, children or personal representative of a person whose death has been caused by the wrongful act, neglect or default of another. The cause of action in such cases, though statutory, nevertheless springs out of the principles of the common law, and is equitable and remedial in its nature. Nor is the statute like those requiring railway companies to fence their lines of road, and providing that if they fail so to do they shall be liable for any animal killed while straying upon their unfenced trackfor in such case it may be considered chat the neglect to fence causes or contributes to the injury. The statute invoked by plaintiff -in this case imposes a penalty for omissions to do certain acts which could not possibly have contributed to the killing of the animals, since
2. In the county court- the statute of limitations was not pleaded; on appeal in the district court, however, the plea was interposed, but was struck out on motion of plaintiff.
The general rule in civil actions is, that the statute of limitations is a special privilege, and must be pleaded in apt time, or it is deemed waived. Chivington v. Colo. Springs Co., 9 Colo. 597. But this rule does not apply to penal actions. The reason for the distinction is not difficult to understand. In an ordinary civil action the plaintiff asserts some legal or equitable right usually vested in himself independent of statute ; and his right to recover is founded upon some claim or demand alleged to have accrued before the commencement of his suit. Hence the language of limitation acts applicable to such actions is, that they shall be brought within a limited time “after the cause of action shall accrue,” or, “ after the accruing of the cause of action.” The language of the limitation act for penalties does not speak of the time when the cause of action accrued, but of the time when the offense was committed for which an action for a penalty may be brought. See Gen. Stats. (1883), chap. 66.
In a suit for a penalty the plaintiff has no cause of action independent of the statute; while the penal statute gives him the right to recover the penalty by suing for it, the limitation statute makes his cause of action dependent upon his bringing suit within a certain period; so that if he fails to bring his suit within such period he has no cause of action remaining.
The plea of the statute of limitations in this case was proper, though not absolutely necessary ; hence, the assignment of error as to the striking out of such plea need not be passed on. The time within which plaintiff might bring his action was of the essence of his cause of action, and so defendant was entitled to the benefit of the statute under a general plea denying the existence of plaintiff’s cause of action. The action not having been brought until the expiration of one year after the offense was committed, plaintiff had no cause of action for the “ penalty.” See 2 Saunders’s Reports, p. 63 and notes; also, Pike v. Jenkins, 12 N. H. 255; Moore v. Smith, 5 Me. 490; Commonwealth v. Washington, 1 Dana (Ky.) 446; Estill v. Fox, 7 T. B. Monroe, 552; Watson v. Anderson, Hardin (Ky.) 466; The Harrisburg, 119 U. S. 199.
3. The cross errors assigned require only brief consideration. The court was warranted in granting a judgment of nonsuit as to the fifth and twelfth causes of action; as to those counts, plaintiff practically abandoned his claim on the trial. But counts numbered 1, 2, 3, 4 and 6 state facts sufficient to constitute a cause of action, and the evidence under such counts was such as should have been submitted to the jury. It is true, the evidence did not show negligence on the part of the defendant company in killing the animals described in said counts; but the evidence did tend to show that the animals were converted to the use of defendant after the killing; and so the case should have been submitted to the
As the case may be tried again, we shall not further discuss the evidence. The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with this opinion, neither party to recover costs against the other in this court.
Reversed.
