145 N.E. 517 | Ind. Ct. App. | 1925
Action by appellee against appellant for conversion. Material averments of the complaint are: On February 27, 1913, appellant was, and for many years immediately prior thereto had been, the cashier of appellee bank, and on that day, appellant, while acting as such cashier, wrongfully took and converted to his own use $2,064.38 of the money of appellee, and charged the same to the account of John Tomey, a depositor of the bank. Four months later, and before the account had been balanced, Tomey having died intestate, appellant as cashier, and in order to conceal his wrongdoing, prepared and delivered to the widow and sole heir of Tomey, a new pass-book purporting to be a duplicate of the original, in which new pass-book were *18 false entries by which the deposits shown were $2,064.38 less than those actually made, and the balance was, by appellant, made to correspond with the books of the bank. By reason of the false charge against the account of John Tomey on the books of the bank, and by reason of the false entries in the new pass-book, the wrongful act of appellant in appropriating to his own use the $2,064.38 was concealed by appellant, and was not discovered by appellee until November 28, 1921. Thereafter on December 17, 1921, appellee paid to Nellie Tomey the sum wrongfully charged. The amount of money alleged to have been wrongfully taken, with interest, is demanded. Action was commenced January 28, 1922.
To the complaint appellant filed a demurrer for want of sufficient facts. The demurrer was overruled, and appellant, in addition to an answer in denial, pleaded the statute of limitations. A demurrer to the special plea was sustained and appellant filed two additional paragraphs of answer, in each of which, in addition to pleading the statute of limitations, it was averred that the records of the bank were at all times open to the inspection of all the officers of the bank, wherefore there was not, and could not have been, a concealment as averred in the complaint. A reply in denial closed the issues, and a trial by the court resulted in a verdict for appellee.
Errors assigned, and which require consideration, are: (1) Overruling demurrer to complaint; (2) sustaining demurrer to second paragraph of answer; and (3) overruling motion for new trial.
It is urged that the complaint is demurrable for the reason that the facts averred therein show that the action was not commenced within six years following its accrual, which 1, 2. is the period of limitation fixed by statute in such cases. § 37 Civil *19
Code, § 301 Burns 1926, § 294 Burns 1914. To this section of the statute of limitations, there are exceptions, one of which is where, as is averred in the complaint under consideration, there has been a concealment by the person liable. § 46 Civil Code, § 309 Burns 1926, § 302 Burns 1914. It has frequently been held by the courts of appeal, and is a well-established rule, that where there are exceptions to the statute of limitations, and it is desired to defend on the ground that the action is barred by the statute, the question cannot be raised by demurrer to the complaint. The statute must be pleaded in bar of the action, unless it affirmatively appears from the complaint that the cause does not come within any of the exceptions. Pence, Exr., v.Young (1899),
It is also contended that the demurrer to complaint should have been sustained for the reason that the concealment of the cause of action is not sufficiently pleaded. The facts showing 3. the concealment might with propriety have been more fully set forth, but, since appellant did not move that the complaint be made more specific in that regard, he is in no position to complain. In the absence of such motion, we hold that the concealment is sufficiently pleaded.
The court did not err in overruling demurrer to complaint.
If the action of the trial court in sustaining demurrer to appellant's second paragraph of answer was erroneous, which 4. we do not decide, the error was harmless for the reason that all material facts *20 alleged therein were provable under other paragraphs of appellant's answer, the sufficiency of neither of which is questioned.
The error assigned, and which is chiefly relied on for a reversal, is the action of the court in overruling the motion for a new trial.
It is earnestly contended by appellant that the decision is contrary to law for the reason that the court determined that there was concealment, in the absence of an affirmative 5-7. reply to that effect. Since the statute of limitations is a defense which may be waived, and, therefore, must be specially pleaded, it is not necessary for the plaintiff in his complaint to anticipate such defense by averment of facts in avoidance. When there are facts which bring the case within one of the exceptions to the statute of limitations, the proper practice would be for the plaintiff in his complaint not to anticipate the defense, and if the defendant pleads the statute, file an affirmative reply setting forth the facts showing that the case is within the exception claimed. State, ex rel., v.Parsons (1897),
Appellant claims that there is no evidence of the concealment by him of the cause of action, and that, therefore, under the evidence, the action is barred by the statute of limitations.
The concealment of a cause of action which will take it out of the operation of the statute of limitations must consist of some affirmative act or line of conduct. Churchman v. City
8-10. of Indianapolis (1887),
Appellant complains of some rulings of the trial court on the admission of evidence. For the most part, the exceptions to the rulings were not properly saved. It is not necessary, 11. however, to consider these rulings and determine if any of them is erroneous, for the reason that it appears from the legitimate evidence shown by the record to have been admitted that appellant has received substantial justice; that the correct result has been reached. Deep Vein Coal Co. v. Ward, Admx.
(1919),
Affirmed.
