55 Iowa 37 | Iowa | 1880
Upon this subject the Code is not the enactment of a new law, but a mere continuation of the old. See Fullerton v. Sprung, 3 Wis., 667; Thompson v. Read, 11 Iowa, 48.
Second. The only repealing clause of prior statutes is section 17 of the Code. Section 50 of the Code is as follows: “ This repeal of existing statutes shall not affect any act done, any right accruing or which has accrued, or been established, nor any suit or proceeding had, or commenced, in any civil cause before the time when such repeal takes effect, but the proceedings in such cases shall be conformed to the provisions of this Code as far as consistent.”
The note sued on became due on the 1st day of January, 1869. "When the Code of 1873 took effect, the statute had been running against the note for four and one-half years. At that time the holder of the note had a right to commence an action upon it at any time within five and one-half years. The maker had a right, if action should be commenced after the lapse of five and one-half years, to plead the statute of limitations. Now if the operation of the Code of 1873 is to extend the period of the statute of limitations to ten years from the time of taking effect of the Code, it is apparent that the right accruing or accrued under the note is affebted. The right of the holder of the note is .enlarged, and the right of the maker of the note is abridged. Under section 50 of the Code this cannot be done. It follows that the causes of action referred to were barred at the time the action was commenced.
This section can apply only to a case when no judgment upon the merits is rendered, and another suit is brought upon the same cause of action. If a judgment upon the merits should be rendered, it is apparent that it would operate as a bar to a new suit. In this case there was a final judgment upon the merits, that the plaintiff could not recover upon the note sued upon in the former action because it was procured by fraud.
Appellant claims that this suit is upon the same cause of action, and is but a continuation of the former suit, which was commenced before the bar of the statute upon the claims in question was complete. It is clear, however, that this suit is not upon the same cause of action, for, if it were, the former judgment would be a bar to any further litigation. Section 2537 does not preserve the plaintiff’s rights. The demurrer was properly sustained.
Affirmed.