145 N.W. 1031 | N.D. | 1914
This is the second appearance of this case. See Mann v. Redmon, 23 N. D. 508, 137 N. W. 478. This appeal is from a judgment of dismissal entered on a motion by defendant for judgment upon the pleadings and files. We need review but the complaint of the plaintiff, including an attached verified claim, by the terms of the complaint made a part thereof, and the date of service.
Erom the complaint it appears that the action is brought against the administrator of an estate to recover damages, that it was necessary to file such claim with the administrator for alloAvance in the usual course of administration, and that the claim Avas so filed for such pur
Counsel persists in contending that we are dealing with an ordinary statute of limitation of actions. We are not. That was set at rest in the former. appeal. The time within which a suit must ordinarily be brought or be maintained, subject to a defense that the action is barred by facts showing the action to be limited by time, as under the ordinary statutes of limitation of actions, is one thing. There, the right of action, the claim, is barred by withholding the remedy, the action
Defendant need not have answered. Plaintiff could not have procured judgment without proof of her cause of action, a part of which must have been of the fact of rejection; and, further, that suit was brought within the statutory time upon the rejected claim. Under proof of all facts recited in plaintiff’s complaint, including proof that it was a claim being asserted against a decedent’s estate, the court, being obliged to take judicial notice of its own records showing suit brought too late, could do nothing but dismiss because of failure of proof of a cause of action. Plaintiff’s right to recover, therefore, cannot be made to depend upon whether she can avoid the defense as plead, but must be decided instead upon whether she has established a 'cause of action, assuming that she can prove all facts recited in her complaint. Under the statute and our own decisions, it is affirmatively established that plaintiff has no cause of action, and the judgment appealed from is affirmed, with costs.