59 Kan. 29 | Kan. | 1898
The plaintiffs in error, as the widow and children of James Harrison, brought this suit on a certificate of membership in the Masonic Mutual Benefit Society issued to him on the twenty-ninth of October, 1879. It is alleged in the amended petition that all dues and assessments payable by the terms of the certificate for and including the year 1883 were duly paid; that iu the year 1883, and prior to the fifth of November, James Harrison came to his death in some manner unknown to the plaintiffs ; and that they were unable to furnish proofs of his death until the sixth of June, 1894, when such proof was duly made. It appears from the testimony that James Harrison, with his family, consisting of his wife and several children, resided on a farm near Holton, in Jackson county ; that he was a master mason in good
It is contended .that it was impossible for the plaintiffs to furnish due proofs of the death of James Harrison until aided by the presumption arising from his unexplained absence for seven years ; and that this is
The only remaining question, then, was and is whether the action was barred by the Statute of Limitations. Proof of death was not made until July, 1894,— more than ten years and a half after death occurred. It is well settled that, where some step must be taken by the plaintiff preliminary to his right to maintain an action, he cannot by delaying it indefinitely prolong the time for commencing his suit. Where the act to be done is wholly within his own control, he must perform it within a reasonably time ; and it has been said that a reasonable time can never exceed the period within which an action would have been barred by the Statute of Limitations in a case where no such preliminary step would be necessary. A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, 14 Pac. 271; Rork v. Comm’rs of Douglas Co., 46 id. 175, 26 Pac. 391; Bauserman v. Charlott, 46 id. 480, 26 Pac. 1051; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118. Even allowing to plaintiffs five years
The judgment is affirmed.