202 P. 203 | Mont. | 1921
prepared the opinion for the court.
Thisús an action in claim and delivery to recover the possession of a cow and increase two calves. The cause was first tried to a justice of the peace and judgment rendered for plaintiff. Upon appeal a trial was had in the district court, a jury being waived by both parties. Judgment was duly given and entered for the plaintiff. From the judgment and the order denying a motion for a new trial defendant appeals.
There is no conflict in the evidence. It appears that in the
In December, 1914, or January, 1915, one Edgar Gibson, a resident of Clyde Park, Park county, Montana, claimed the cow as his property, and sold it to defendant for the sum of $25. Defendant has ever since the animal came to her ranch retained open possession of the cow and her increase. In the summer of 1917, plaintiff, after having continuously searched for it and made inquiries among his neighbors, appeared at defendant’s ranch and demanded the cow. It bore his recorded brand, 5K. There is no question raised as to the identity or ownership of the animal, but defendant contends that the action for its possession is barred by the statute of limitations (subd. 3 of section 6449, Rev. Codes, as amended by Chap. 47, Laws 1917). The pertinent portion of the amended section reads as follows:
“Section 6449. Within two years:
“1. An action upon a liability created by statute other than a penalty of forfeiture.
“2. An action for waste or trespass on real or personal property; provided that, when the waste or trespass is committed by reason of underground work upon any mining claim, the cause of action shall not be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting such waste or trespass.
“3. An action for taking, detaining or injuring any goods or chattels including actions for the specific recovery of personal property.
“4. An action for relief on the ground of fraud or mistake the cause of action in such ease not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
“5. An action for killing or injuring stock by a railroad corporation or company.”
The law is well settled that in construing a statute, we must
It will be observed that under subdivisions 2 and 4 the cause
We have carefully analyzed all of these decisions and others as well along the same line, but can find no parallel in them to the instant case. They are based upon fraud and concealment or in contravention of a right which came into being long after the cause of action was alleged to have accrued.
We find that the well-settled law on the identical situation in this case holds with the defendant, however harsh its application may seem.
The application of this subdivision of the law may appear rigid and unfair, and it finds its way into the statutes doubtless upon the theory that under the law of averages it gives the greatest good to the greatest number in tolling the rights of negligent claimants. The remedy for curing its apparent defects with respect to diligent and honest owners rests with the legislature and not with this court.
For the reasons herein stated, we recommend that the judgment and order denying a new trial be reversed, and the cause remanded to the. district court, with directions to enter judgment for the defendant
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order denying a new trial are reversed, and the cause is remanded to the district court, with directions to enter judgment for the defendant.
Reversed and remanded.