Searle v. Adams

3 Kan. 515 | Kan. | 1866

By the Court,

Crozier, C. J.

In this case the irrepressible statute of limitations is again presented for consideration. Eor some years past upon the disposition of each succeeding case involving a construction of this statute, it was considered by bench and bar, that fiction itself could scarcely conceive of a new question to arise thereunder, but as term after term rolls around, there are presented new questions comparing favorably, in point of numbers, with Falstaff’s men in buckram, thus adding to the legions that have gone before, a new demonstration of the propriety and verity of the adage that “ truth is stranger than fiction.” With the heat of 98 degrees of Fahrenheit, in the shade, and the newspapers teeming with reports of the ravages of our great common enemy, who, the more effectually to accomplish his double purpose of capturing the imprudent and frightening the timid, has assumed the form of the Asiatic monster, it might be supposed by the unthinking that the consideration of such questions would be entered upon rather reluctantly. But we beg to disabuse the public mind of any such heresy. Oases might be imagined where “ smashes ” would not stimulate, nor “ cobblers ” quicken, nor “juleps” invigorate; but a new question under our statute of limitations, in coolness and restoring power, so far exceeds any and all of these, that when one is presented, the “ fine auld Irish gintleman’s ” resurrection under the circumstances detailed in the song, becomes as palpable a realty as the “ Topeka constitution or the territorial capital at Mineóla.” The powers of a galvanic battery upon the vital energies are wholly incomparable to it. So that the consideration of this ease, upon this day of wilted collars and oily butter, should not entitle the court to many eulogies for extraordinary energy in the fulfillment of its duties.

In the case at bar, this court is asked to say, that upon the facts found by the judge of the District Court, no judgment should have been rendered against Searle; and in making this request, counsel was understood to intimate that some mischievously disposed persons, with-a diabolical intent, not clearly revealed, while organized as the legislature of the state, had made a violent and unwarrantable onslaught upon the constitution, — that constitution which this court, as a tri-pedal pier, is exerting its utmost endeavors to support, — that constitution which, not only from patriotic and moral, but from alimentary considerations as well, we are bound to maintain and defend. Judging from the argument of counsel, considered with reference to its length, earnestness and number of authorities cited, we did not know but that while we were sitting attentively listening to what was said in exposition of the attempt aforesaid, even then the constitutional fabric was toppling to its fall and needed but an affirmance of the judgment of the court below to bring it down about our ears with a crash which should cause constitutional governments all over the world to quake upon their foundations, and inflict upon the body of constitutional liberty, contusions which must inevitably result in her speedy mortality. Being in a somewhat “ melting mood ” to-day, we would be pleased to gratify counsel by adopting his fears, growing out of the supposed nefarious attempt of the legislature in the passage of the 19th section of the act concerning the lost records of Douglas county, but supposing he will be somewhat gratified at a decision in his favor upon any ground, we proceed now to render such decision, asking to be excused from resolving ourselves into a state of excitement on account of the supposititious attack aforesaid, especially as we are not convinced that any such attack was contemplated or accomplished.

The right of action accrued against Searle on the 8th of July 1858, and was barred July 8th, 1861, because no summons dated prior to that time was served upon him; the twenty-seventh section of the Code providing that an action shall be deemed commenced within the article on limitations, at the date of the summons which shall be served on each defendant. The summons issued March 23d, 1861, was not served upon Searle, and if an alias had been issued after July 8th, 1861, and before the destruction of the records in 1863, and served upon him, he might have successfully availed himself of the limitation provided.

Section nineteen of the act concerning the burned records of Douglas county, does not apply to such a case. It is as follows: ■ “ The plaintiff in any action pending in said court, or in which summons had been issued on the 21st day of August last, instead of setting out the pleadings therein, as hereinbefore mentioned, may commence a new suit upon the same cause of action as in other civil cases, and the defendant shall not be allowed to plead the statute of limitations, unless lie could have pleaded it in the original action, and the petition of the plaintiff shall allege the time when the original action was commenced, as near as may be, and that it was peudiug, or summons had issued, as hereinbefore mentioned.”

It is as transparent as the soup of which Oliver Twist implored an additional supply, that the case at bar is not one of those, as to which the general limitation was sought to be "suspended by the section quoted; wherefore the District Court erred in rendering judgment against Searle.

In the case of Robinson v. Kinney, (2 Kans., 184,) this court held that a note, like the one sued upon in this case, would draw interest until maturity at five per cent per month, and thereafter at the rate fixed by law in the absence of a contract upon that subject. This decision we are not disposed to disturb. There was therefore, error in the computation of interest in this case by the court below.

The judgment of the District Court will be reversed and the cause sent back for judgment in accordance with this opinion.

All the justices concurring.