Idaho Trust & Savings Bank, Ltd. v. Nampa & Meridian Irrigation District

161 P. 872 | Idaho | 1916

BUDGE, J.

This is an appeal from a personal judgment entered in favor of the respondent for the sum of $1,318.97, and is a companion case of Idaho Trust & Savings Bank, Ltd., v. W. H. Ridenbaugh et al., ante, p. 647, 161 Pac. 868, and was, by order of the trial court and by agreement of counsel, consolidated with and tried at the same time and upon the same evidence, as that case. We have carefully examined the additional assignments of error relied upon by appellants and do not deem it necessary to discuss them at length. We may say in passing, with reference to the bar of the statute of limitations, urged by appellant against the right of respondents to sue upon the judgment, that the contention made by counsel for appellant, namely, since it does not appear that the original complaint was filed within six years from the entry of said pretended judgment that as a question of law said statute of limitations ran until the filing of the second amended complaint, is untenable. The judgment upon which this suit was brought was entered on January 18, 1906, and the original complaint was filed on January 17, 1912, which is within six years from the entry of said judgment, and the statute of limitations would cease to run upon the filing of the original complaint. In answer to appellants’ next contention, which is extremely technical, that even though it be conceded that the right to recover by the Idaho Trust & Savings Bank is not barred by the provisions of sec. 1051, Rev. Codes, the cause of action set out in the amended complaint is barred by said section of the statute as to additional parties plaintiffs. ' The rule, however, which appears to be supported by the weight of authority, is set forth in the case of Hucklebridge et al. v. Atchison, Topeka & Santa Fe Ry. Co., 66 Kan. 443, 71 Pac. 814, wherein the court held that the substitution of a party plaintiff in a ease wherein the cause of action or claim was not substantially changed, the cause of action was not barred by reason of the fact that the new party or parties were not brought in until the statute of limitations otherwise would have run, and that bringing in new parties would relate back to the date of the commencement of the original action.

This rule is supported by the following authorities: Green v. Clifford, 94 Cal. 49, 29 Pac. 331; Kain v. Arizona Copper Co., Ltd., 14 Ariz. 566, 133 Pac. 412; Vunk v. Raritan River R. R. Co., 56 N. J. L. 395, 28 Atl. 593; Bradford v. Andrews, 20 Ohio St. 203, 5 Am. Rep. 645; Suber v. Chandler, 36 S. C. 344, 15 S. E. 426.

In the case of Hougland v. Avery Coal & Min. Co., 246 Ill. 609, 93 N. E. 40, the supreme court of Illinois held that the addition of a necessary party plaintiff would not be the commencement of a new suit or statement of a new cause of action. (El Paso & S. W. R. Co. v. Harris & Liebman (Tex. Civ.), 110 S. W. 145; McArdle v. Pittsburg Rys. Co., 41 Pa. Super. Ct. 162.)

There is no merit in appellants’ contention that the judgment for costs sued upon does not constitute a liquidated claim in favor of respondents, and therefore they would not be entitled to interest. The judgment for costs upon which respondents’ action is based has been twice passed upon by this court and held to be valid in both cases, and it necessarily follows that it would bear interest as provided by law from the date of its entry.

For the reasons herein stated, and upon the authority of the case of Idaho Trust & Savings Bank, Ltd., v. W. H. Ridenbaugh, supra, the judgment of the trial court is sustained. Costs are awarded to respondent.

Sullivan, C. J., and Morgan, J., concur.