72 Ark. 549 | Ark. | 1904
On the 15th day of April, 1886, L. P. Sandels executed to H. C. Ernest his promissory note for the sum of $500 and 10 per centum per annum interest thereon from date until paid. The note was made payable on or before the 15th day of April, 1888. Ernest died. On the 14th day of April, 1893, T. R. Pipkins, as administrator of his estate, commenced an action in the circuit court for the Port Smith District of Sebastian county to rfecover the amount due on the note. Sandels filed an answer,; and thereafter died on the 6th of October, 1893. The action was revived, against Joseph M. Hill, as administrator of D. P. Sandels, deceased, and was many times suspended and revived, on account of many revocations of the letters of administration of T. R. Pipkins and repeated restorations thereof, until the 30th of January, 1897, when it was revived in the names of Maggie Ernest Pipkins, the widow of H. C. Ernest, deceased, and Henry Bain Ernest, his only heir. On the 5th day of May, 1897, the issues in the case were tried before a jury, which resulted in a verdict in favor of the plaintiffs for $1,053.21, and judgment thereupon. Defendant filed a motion for a new trial, which was sustained, and the court granted the plaintiff an appeal on condition, as provided in sections 1016 and 1066 of Sandels & Hill’s Digest. It does not appear that this appeal was perfected or prosecuted.
On the 25th day of May, 1895, when the action commenced on the 14th of April, 1893, was pending, Pipkins, as administrator of H. C. Ernest, filed the note of Sandels in the Sebastian probate court as a claim against his estate. Hill, as administrator of Sandels, among other things, pleaded the statute of limitations in bar thereof. The claim was disallowed by the court, and the plaintiff appealed to the circuit court; and in that court, the letters of administration of Pipkins having been finally revoked and no other letters being granted to any one, the action was "revived in favor of Maggie Ernest Pipkins, the widow, and Henry Bain Ernest, the only heir. Plaintiffs recovered judgment, and from that judgment the defendant appealed to this court.
The time allowed by the statutes of this State for bringing actions upon promissory notes is five years. Allowing days of grace, the five years allowed for bringing an action upon the note sued on expired on the 18th day of April, 1893. The action commenced in the circuit court was within the time; but the action in the probate court was a distinct action, was brought while the first was pending and prosecuted, after the expiration of the five years, and was barred. The statutes did not save the remedy, for no non-suit was suffered by the plaintiff in the first action, no arrest of judgment was made therein after verdict, and there was no reversal on appeal. S andéis & Hill’s Digest, § 4841 '> Delaplaine v. Crowinshield, 3 Mason, 329, s. c. Federal Cases, No. 3756; Crane v. French, 38 Miss. 503, 525; Callis v. Waddy, 2 Munf. 511; Elder v. McClaskey, 70 Fed. Rep. 529; Wood, Limitations (3d Fd.), § 292.
Reversed, and final judgment rendered here in favor of appellant.
