Johnson v. Butler, 170 N.W. 140

Johnson v. Butler

170 N.W. 140 | S.D. | 1918

"WHITING, P. J.

Action to recover on promissory note given by defendants to plaintiff bank. Plea of payment, and also that action was barred because not brought within six years from, date right of action accrued. Trial to court without a jury. Findings of facts bearing upon both defenses, but conclusion only upon second plea. This conclusion was in favor of defendants. Appeal from judgment and order denying a new trial.

[1] Note was due 12 — 1—1911; summons and complaint were issued 11 — 27—1917; and on 11 — 28—1917, were placed in hands of sheriff of the county .wherein defendants resided. There was personal service of summons and complaint on 2 — 6—'1918, more than 60 days after they came into hands of sheriff. Under our Code (section 103, C.' C. P.) this action was not commenced until *238the summons was served, -but -appellants contend that the statute of limitations had) not run because of section 68, C. C. P., which provides that:

“An attempt to commence an action is deemed equivalent to tibe commencement thereof, when the summons is delivered, -w-ith the intent that it shall be actually served, to the sheriff * * * of the county- in which the defendants * * * usually or last resided.”

B-ut appellants entirely ignore the last part of said section 68 which provides:

“But such an attempt must he followed! by * * * the service thereof, within -sixty -days.”

This section is in effect identical iwith section 399 of the New Yo-rlc Code, and it is -cl-ear that it means just what it says, and therefore that, in- order to prevent the running of the statute of limitations after the delivery of this summons, such summons must have been served within 60 days- after it was received by the sheriff.

[2] Appellants further contend that the statute of limitations was tolled because of -certain payments made on the note. In their -complaint, appellants plea-died no payments. Respondents pleaded that, at the time of giving the note, they had turned over certain accounts as collateral thereto. Appellants -replied, admitting the receipt of such accounts, and alleging that they were collected and applied1 upon the note in tine year 1912. There was no proof as to th-e time of the collection- of such accounts, and the court made no finding as to s-ucli time, but appellants- now contend that the receipt of money on- these -collaterals anidl application of sam-e on the note tolled the statute of limitations. The reply was a superfluous pleading, entirely uncalled for, and its only effect was to bind appellants by any admission therein that was against appellants’ interest. The allegation as to time of payment of such collateral, even if such- reply ha-dl been properly interposed, was necessarily -considered' by the trial court as controverted by respondents. 'Section 145, iC. iC. P. It follows that th-e trial -court did not err in refusing to find the time when the collateral accounts were collected; and! it therefore also follows that there was no proof of any payment made at a time that would toll the statute. We -do not -wish to be understood! as intimating any opinion that *239the receipt of money on a collateral could toll the statute. In view of the record 'before us we are not called upon to pass on that question.

[3] Respondents alleged and offered testimony to prove that some considerable time after the -note' became due, they, at -the request of the cashier of appellant bank, deeded- certain real property to a third person, the agreed consideration for such deed being an agreement to cancel and return the note. 'While, for reasons we are not called upon to idjiscuss, appellants contend that this attempted payment of the note was ineffective, they nevertheless contend that it was such a written acknowledgment of the debt evidenced by the note as was sufficient to toll the statute of limitations. There is absolutely no merit in this -contention. It is not shown that the deed in any manner whatsoever referred to this note; it did not therefore amount to any written acknowledgement of an existing indebtedness. There is a wide 'distinction between proof of payment and proof of written acknowledgment of debt. A -check may be given in payment of a part of a debt, andl such payment have the effect of tolling the statute of limitations as to the remaining indebtedness evidenced, and yet such check contain no word evidencing any acknowledgment of thie existence of the note or of any indebtedness.

The trial court correctly held that this cause of action had been barred) by the expiration of the six years that had elapsed after the note fell due, and prior to the commencement of this action. It follows that the judgment and order appealed1 from should be, and they are, affirmed.