78 P.2d 877 | Kan. | 1938
The opinion of the court was delivered by
This is an appeal from an order of the court overruling a demurrer to the petition in an action against the surety on the
On this appeal the principal question argued is the statute of limitations (G. S. 1935, 60-307). Preliminary to that appellant contends that his motion to have the petition made specific as to the date plaintiffs claimed their mother, as trustee, wrongfully disposed of the bonds and stamps, the date plaintiffs learned of it, and the dates they respectively became of age, having been opposed by plaintiffs and overruled, he is entitled to have the petition construed more favorably to him in these respects. The point is well taken, under many of our decisions, from Stewart v. Balderston, 10 Kan. 131, to Bell v. Bank of Whitewater, 146 Kan. 901, 904, 73 P. 2d 1059. But neither the trial court ñor this court need close its eyes to its own record. The opinion in Ryan v. Seovill, supra, discloses that the bonds and stamps were sold by the trustee in 1921 and the money loaned at a higher rate of interest to one regarded as being financially responsible; that this was done under the advice of her attorney and of a banker who had been her financial adviser, and that the plaintiffs learned of this as early as May, 1933. The petition in this action, with its exhibits attached, discloses that one of the plaintiffs was 28 years of age and the other 24 when this action was brought, and that the order of the court for the trustee to deliver the bonds and stamps, or their value, to plaintiffs was applied for and obtained less than three months before this action was brought.
The rule of law which governs the matter was well stated by Mr. Justice Burch in West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, as follows:
“It is established law in this state that when some preliminary action is an ■ essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will be*751 gin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.” (Citing many authorities.)
Later cases announcing and applying this principle of law are McClun v. Lutz, 99 Kan. 775, 777, 162 Pac. 1164; Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 128, 131, 23 P. 2d 465; McCormick v. McCormick, 140 Kan. 38, 40, 33 P. 2d 942; see, also, Bell v. Bank of Whitewater, 146 Kan. 901, 73 P. 2d 1059. The general authorities are to the same effect; 17 R. C. L. 755, 756; 37 C. J. 961, 965.
We have examined the authorities cited by appellees and find nothing in them contrary to the' rules of law above stated. They argue, also, that the statute of limitations should be raised by answer. However, it has been repeatedly held that where a petition discloses on its face that the cause of action is barred by the statute of limitations the question may be raised by demurrer to the petition. See Kansas State Bank v. Shaible, 118 Kan. 73, 234 Pac. 40, and many other cases noted in Hatch. Dig. § 189, Lim.- of Act. As was pointed out in Scovill v. Scovill, supra, the appellant here was a gratuitous surety and entitled to have statutes and rules of law designed for the protection of such a surety strictly construed in his favor.
Here it is clear the alleged wrongful disposition of the bonds and stamps occurred many years ago, and that plaintiffs knew of it as early as May, 1933. Under G. S. 1935, 60-307, each of the plaintiffs had one year after she attained her majority in which to bring this action, but one of them waited about seven years and the other about three. It is true it was necessary for them, before bringing the action, to get an order from the court for the trastee to turn the bonds and stamps, or their value, over to them. (Scovill v. Scovill, supra.) They had a reasonable time in which to obtain this order, but under the many authorities cited herein such reasonable time could not extend beyond the one year in which the action might be brought.
The result is, the demurrer should have been sustained. No good purpose will be served by continuing this litigation. The judgment of the court below will be reversed, with directions to sustain the demurrer to the petition. It is so ordered.