92 Kan. 398 | Kan. | 1914
The opinion of the court was delivered by
These actions were brought to recover rents for the use of a certain tract of land the possession of which had been the subject Of earlier litigation. (Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396; Stouffer v. Harlan, 84 Kan. 307, 114 Pac. 385.) The first of the actions now under consideration, in which James S. Harlan was named as plaintiff, was brought on August 14, 1909, to recover from Sanford Loomis the rentals of the land for the years 1906, 1907 and 1908
The principal contention on these appeals is that the right of recovery for the earlier years, at least, was barred by the statute of limitations. It is insisted that the commencement of the action in the name of James S. Harlan did not operate to toll the statute of limitations, and that when the- amendment was made substituting appellee as plaintiff the three-year statute of limitations had run on the claims for rent set out in the original petition. There is no contention that the amendment substituting one party for another was improperly allowed, but it is contended that James S. Harlan was a stranger to the land occupied by appellant and to the controversy as to the rentals for its use, and that an action in his name did not arrest the running of the statute on the claims, and that the amendment substituting Richard D. Harlan, executor, as plaintiff did not relate back to the commencement of the action. It appears that James S. Harlan had acted as agent and representative of the owner of the
“As the amendment did not introduce a new claim or cause of action it is not to be deemed a change of the action itself; and, under the liberal provisions of our code authorizing amendments, we think the amendment relates back to the beginning of the action, and that the statute of limitations did not run against the owner of the paper during he pendency of the proceeding.” (p. 862.)
Other supporting authorities are: Weaver v. Young, 37 Kan. 70, 14 Pac. 458; Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814; Maurer v. Miller, 77 Kan. 92, 93 Pac. 596; Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091, and Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198.
It is contended that the action brought by appellee is founded on tort, and therefore the two-year statute of limitations should be applied. The record discloses that the action was not for trespass to real estate, but was brought to recover rents, an action founded on implied contract, and therefore the three-year statute of limitations is applicable. (Gatton v. Tolley, 22 Kan.
There is nothing substantial in the claim that appellee should be regarded as having abandoned ,the land and estopped to assert the claims for its use by appellant.
The judgment of the district court is affirmed.