19 S.D. 617 | S.D. | 1905
This .is an appeal by the plaintiff from a judgment rendered in favor of the defendant and from an order denying a motion for a new trial. The action is based upon a promissory note bearing date of April 1, 1889, and payable April 1, 1894, and the only questions presented for our consideration are, was the note a sealed instrument, and was it barred by the statute of limitations? It is alleged in the complaint that the.note is a sealed instrument, and the defend-
The appellant contends that the evidence was uncontra-dicted tending to prove that the note was a sealed instrument, and that, being a sealed instrument, it would not be barred by the statute of limitation until 20 years after its maturity, under the provisions of section 58, Rev. Code Civ. Proc. It is contended by the respondent, in support of the judgment of the court below and its order denying a new trial, that by section 1243 of the Revised Civil Code the disúnction between sealed and unsealed instruments was abolished, and that, consequently, the note, though appearing to be sealed, but not required by law to be sealed, must be regarded by this court as an unsealed instrument, and comes within the clause of the statute of limitations providing that an action upon a contract
It is contended by the respondent that the two sections, may be given effect by holding that the distinction between sealed and unsealed instruments is abolished as known to the common law, and that the section in the limitation statute ap-’ plies to sealed instruments which are required to be sealed un-denthe laws of this state; but this would, in effect, be interpolating into the statute qualifications not found therein, or warranted by the language used by the lawmaking power. In State v. Smith, 8 S. D. 547, 67 N. W. 619, this court, speaking of the conflict between the two sections in the different Codes says: “It was provided by the general repealing act of February, 1877, that for the purposes of construction the several Codes adopted at that session of the Legislature ‘shall be held and deemed to have been passed on the same day and as parts of the same statute, and if the provisions of any Code conflict with or contravene the provisions of any other Code, the provisions of such Code must prevail as to all matters and questions arising thereunder out of the same subiect matter. Rev. Codes, 1877, p. 900.’ ” The two sections that we are now con
Tne learned circuit court was therefore in error in concluding that the action was barred by the statute of limitations, and the-judgment of the court and its order denying a hew trial are reversed.