30 F. 488 | U.S. Circuit Court for the District of Eastern Missouri | 1887
The first count of this petition is upon a judgment recovered in the Southern district of Illinois against the defendant and one James H. Wilson, who were partners, and as such, under the firm name of Winslow and Wilson, contracted the debt out of which the judgment arose. Winslow has been sued alone upon the judgment. There is a
The case of State v. Bird, 22 Mo. 470, appears to have been the first case in this state in which the statute of limitations was invoked by demurrer. In that case the action was on a constable’s bond, as to which the statute created an absolute bar to an action by lapse of two years without any exception, and it was held to be proper to entertain a demurrer in that case, solely on the ground that the bar was absolute, without any exception, after the lapse of two years.
The next case in order of time was that of McNair v. Lott, 25 Mo. 190, in which case it was held, substantially, that the statute could not be invoked by demurrer, except in those cases “where it plainly appears that plaintiff’s case is fully stated, and it is clear that he cannot recover” by reason of lapse of time.
In the case of Boyce v. Christy, 47 Mo. 70, cited by defendant, the action was upon an indenture given by a master to his apprentice. As to this class of instruments, the statute creates an absolute bar, without any exceptions, after the lapse of two years. Rev. St. Mo. § 4091. In deciding that case, and holding the petition to be demurrable, the court refer to the former decision (State v. Bird, 22 Mo. 470,) as controlling authority.
In a still later case, that of State v. Spencer, 79 Mo. at page 316, the supremo court restate the rule in State v. Bird, supra, as follows: “ When the statute creates an absolute bar by the mere lapse of time, without exception, the defense [of the statute] may be made by demurrer, if the necessary facts appear upon the pleading.”
There is one other case, Henoch v. Chaney, 61 Mo. 129, in which a general statement is made to the effect that, “ when the petition upon its face shows that the time has elapsed in which suit may be brought, the defect may be reached by demurrer;” but, as the above-cited case of Boyce v. Christy is alone referred to in support of the proposition, it is manifest that the court merely intended to reaffirm the doctrine of the preceding cases,'namely, that a demurrer will lio in those cases only where
The demurrer to the second count will accordingly be overruled, and the defendant will be held to make the defense of the statute by plea instead of by demurrer.
Twenty days will be allowed to file a plea or answer.