190 N.W. 1009 | N.D. | 1922
This is an appeal from a judgment in favor of defendant on a directed verdict. On the trial the court sustained an objection to any evidence on the part of the plaintiff on the ground that it appeared from the complaint that the action was barred by statute. The complaint avers that on April 4, 1912, the plaintiff leased to defendant part of its right of way in Oakes, North Dakota, a part of lots 13 and 14 on its right of way; that the lease was until January, 1917; that by the lease defendant agreed to pay for rent $5 a year and all taxes' until January 9, 1917; that for the years 1913 and 1914 taxes were duly levied against the leased premises amounting to $233.37, which defendant failed to pay and which the plaintiff paid and demanded repayment on January 24, 1920.
The answer avers that in March, 1914, the lease was canceled by mutual agreement. Then it avers that the cause of action did not accrue within six years. Now the objection to the evidence was, in effect, a demurrer to the complaint on the ground that it appeared on the face of the complaint that the cause of action did not accrue within six years. But “An objection that the action was not commenced within the time limited by statute can only be taken by answer.” Comp. Laws, 1913, § 7358. It cannot be taken by demurrer or by the objection to the introduction of any testimony. This defense became a question of fact. However, in this case the cause of action, if any, accrued from the time that plaintiff paid the taxes and demanded repayment which was not six years before the commencement of the action. Manifestly the court erred in excluding any evidence and in directing a verdict.
Judgment reversed.
