177 P. 11 | Nev. | 1919
Lead Opinion
By the Court,
Conceding, as is argued, that the cross-appeal falls ■within the rule as announced in the case of Central Trust Co. v. Holmes M. Co. (30 Nev. 437, 97 Pac. 390) that the time within which an appeal may be taken
Coming to the merits of the defendant’s appeal: The plaintiff, J. B. Dixon, an attorney and counselor at this bar, brought his action in the district court of Washoe County in July, 1915, against the defendant, W. E. Pruett, as administrator of the estate of Nellie G. McCormick, deceased, with her will annexed, to charge certain assets of the estate in his hands for distribution, with a claim for legal services rendered the deceased by plaintiff pursuant to oral agreement made with deceased in 1908, wherein it was agreed that the plaintiff was to be paid and receive a contingent fee of one-half of all property, money, or effects that might be recovered or restored to the deceased as and for her interest in the estate of Margaret Winters, her mother. The claim preferred by the complaint is that, pursuant to the contract of employment, he commenced and prosecuted an action, which resulted, in 1909, in a judgment and decree adjudging and decreeing Nellie G. McCormick to be the owner of a one-ninth undivided, equitable interest in 1,200 acres of land described in the pleadings in said suit.
Shortly after the litigation was commenced the said Nellie G. McCormick died testate, and her suit was continued in the name of her executrix and one Forsyth, guardian ad litem of her minor child and devisee. The executrix, after the termination of the litigation, was removed as such by order of court, and the defendant herein qualified as administrator of the estate of Nellie G. McCormick, deceased, with her will annexed. The plaintiff filed a claim with the clerk of the court against the said estate for the sum of $3,417.50. The claim as filed was not formally rejected by the’administrator or the district court, but the latter informed the plaintiff
The complaint consists of two causes of action. The relief demanded therein is in the alternative. First, the plaintiff demands judgment for the sum of $2,500 in lieu of his undivided one-half (equal to a one-eighteenth) interest in the lands and the rents arising therefrom; second, an attorney’s lien for $2,500 against the said sum of $5,000 so paid and received by the defendant; third, an attorney’s lien for the value of his legal services rendered pursuant to the contract of employment, fixed by plaintiff at $2,500; fourth, that plaintiff have such other and further relief as the nature and circumstances of his case may require.
The defendant interposed a demurrer to the complaint, upon the ground that the same does not state facts sufficient to constitute a cause of action. The demurrer was submitted to the court without argument, and was overruled. Thereupon the defendant answered, and for answer, in addition to his special denials of the allegations contained in the complaint, filled with negative pregnants, set up fifteen affirmative defenses to the action. The plaintiff interposed a demurrer to each of these defenses, which was sustained. The defendant thereupon went to trial before the court, without a jury, upon the issues joined upon the pleadings. The trial resulted in a judgment in favor of the plaintiff and against the defendant for the sum of $1,466.66. The defendant appeals from the judgment alone.
Because of the manner and form in which the alleged defenses are pleaded, they have imposed upon us the necessity of a careful scrutiny, analysis, and comparison of the allegations of the complaint and answer to ascertain whether the alleged defenses constitute defenses to the action as the term “defense” is used in our statute.
Section 104 of the practice act (Rev. Laws, 5046; Stats. 1915, p. 192) provides that the answer of the defendant shall contain, if the complaint be verified, a special denial of each allegation of the complaint, controverted by the defendant, or a denial thereof according to his information and belief; * * * a statement, in ordinary and concise language, of any new matter constituting a defense or counter-claim.
,The defenses as pleaded relate back to the allegations found in the complaint, and point out that the plaintiff, before the commencement of his action, failed to comply with the nonclaim statute; that the cause of action stated in the complaint is barred by the statute of limitations ; that the contract sued on is within the statute of frauds; that it is champertous; that the claim preferred by the complaint is stale; that the plaintiff has a remedy at law; that the complaint does not state a cause of action.
The rule is elementary that anything which may be proved under a general or special denial is not a defense, and must not be pleaded as such, nor should it be set out at all. Kelly v. Sammis, 25 Misc. Rep. 6, 53 N. Y. Supp.829.
Applying these principles of pleading to the defendant’s exception to the court’s ruling on the demurrer to the answer, we conclude that the exception as taken is not of such a character as to require us to reverse the judgment.
As this disposes of the appellant’s only assignment of error, we now come to the consideration of respondent’s cross-appeal.
It is the contention of the respondent that the judgment in his favor for the sum of $1,466.66, the amount
As no. benefit would result from replying to respondent’s argument, we shall affirm the judgment without comment.
The judgment is affirmed.
Dissenting Opinion
dissenting:
I dissent, and base my action upon the order of thd district court sustaining the plaintiff’s demurrer to the affirmative defense set up in the answer pleading the failure of plaintiff to bring suit within the time prescribed by statute after he had been notified that his claim against the estate in question had been rejected.
The demurrer to plaintiff’s complaint filed by the defendant, as stated in the majority opinion, was a general demurrer, and was not upon the ground that it appeared from the complaint that the action was barred by the statute; nor could such a demurrer have been sustained had it been filed, for the reason that the complaint does not allege the date of his having been notified of the rej ection of his claim, nor otherwise show that the action was not brought within the time prescribed by the statute. The statute, providing that an action upon a rejected claim must be filed within thirty days after notice of its rejection is given the claimant, is in the nature of a statute of limitations, and the rules of pleading applying to statutes of limitations generally control. It is a well-established rule that, where the complaint does not show upon its face that the action is barred by the statute of limitations, the defense of the statute can
I think the court erred in sustaining the demurrer to the affirmative defense mentioned, for which reason the judgment should be reversed.