22 Wash. 121 | Wash. | 1900
The opinion of the court was delivered by
This is an action brought by the assignee of judgment debtors to recover a surplus received by the sheriff of the county of Spokane on execution sales, paid by him to said Spokane county and appropriated by the county to its own use. A general demurrer was interposed to the plaintiff’s complaint on the ground that the same did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and subsequently the defendant answered, pleading in the answer the statute of limitations. Motion was made to strike the said averments concerning the statute of limitations from the answer, which motion was sustained. Afterwards, upon the application of the defendant, the court permitted it to interpose a special demurrer. Subsequently the special demurrer was sustained by the court, and, the plaintiff electing to stand upon his complaint and the pleadings in the case, judgment was entered for the defendant, and from such judgment an appeal is taken to this court.
It is alleged by the appellant that the court erred in permitting the defendant to commence anew its defense by filing a special demurrer pleading the statute of limitations, after the general demurrer had been overruled and the answer withdrawn.
It is contended that, the statute of limitations not having been pleaded by special demurrer, as provided for in the statute, by the practice act, the statute of limitations
The defendant in this case did not fail to demur as required by the statute, but the only question is, was its demurrer seasonable, or, under the discretion which is vested in the trial court, did the court abuse its discretion in allowing it to interpose a demurrer at the time it did ?
It is true that in Burrows v. McCalley, 17 Wash. 269 (49 Pac. 508), it is said that the court very properly refused to allow the second demurrer, which stated, a different ground from that which was stated in the first demurrer, for the reason that it was not competent for the defendant to interpose different demurrers to the same complaint. This decision would be controlling if the court below in this case had refused to entertain the
The judgment is affirmed.
Gordon, O. J., and Fullerton and Reavis, JJ., concur.