2 Indian Terr. 187 | Ct. App. Ind. Terr. | 1898
The record in this case presents but two questions for the consideration of this court: First, was this action, as set up in the complaint, barred by the statute of limitations? and, second, if it were, was the letter of J. L. Sparks, introduced in evidence, sufficient to take it out of the statute, as to him.
The statute of limitations began to run in the Indian Territory on May 2, 1890, and this suit was commenced on April 17, 1895; being more than three, and less than five, years between the time when the statute began to run and
The supreme court of Wisconsin held that the cause of action arose upon an implied promise of indemnity, and that it was barred by the statute of limitations which governs actions upon instruments not in writing. The supreme court further held: ‘ ‘But there is an error in giving interest on the last payment exceeding 7 per cent. Interest at 10 per cent, was given, doubtless, because the note drew interest at that rate; but the recovery is upon an implied contract for money paid to the defendant’s use, and not upon the note, nor upon the guardian’s bond. The rate of interest on the amount of recovery should be the legal rate, and no more.” In Arkansas the rule is well established that a surety who pays the debt of his principal must, at law, rely upon an implied promise of indemnity or reimbursement. Where a surety on a note takes it up after it is due, and cancels it by giving his own note, which is accepted by the creditors, this is equivalent to the payment of the first note, and will support a count for money laid out and expended.” Neale vs Newland, 4 Ark. 506; Jordan vs Adams, 7 Ark. 348; Snider vs Gratehouse, 16 Ark. 92. Texas (and the note in suit is a Texas contract, having been executed and made payable in that state), by a long line of decisions; holds the same opinion. Holliman vs Rogers, 6 Tex. 91; Hammond vs Myers, 30 Tex. 375; Jackson vs Murray (Tex. Sup.) 14 S. W. 235; Faires vs Cockerell, 88 Tex. 428, 31 S. W. 190, 639; Tabor vs Cockrell (Tex. App.) 16 S. W. 786. While the right of the surety to sue his principal or a co-surety is, at law, based upon an implied promise, by which fiction courts of law, with their inflexible procedure, are enabled to give the surety, who has paid, relief, courts of equity give more ample relief by subrogating the surety who has paid to all of the rights of the creditor, and authorizing
“Sec, 4914. The forms of all actions and suits heretofore existing are abolished.
“Sec. 4915. There shall be but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be called a civil action.
“Sec. 4916. In such action the party complaining*197 shall be known as the plaintiff, and the adverse party as the defendant.
“See. 4917. The proceedings in a civil action may be of two kinds: First. At law. Second. In equity.
“Sec. 4918. The plaintiff may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of this Code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive.
“Sec. 4919. In all other cases the plaintiff must prosecute his action by proceedings at law. ’ ’
If, however, the plaintiff erroneously brings his action upon either side of the docket, the statute provides that the suit shall not. abate or be dismissed because of that, but, on proper motion, shall be transferred to the proper docket, and, if the motion shall not be made by either the plaintiff or the defendant, the error is waived. The statute is as follows:
‘ ‘Sec. 4925. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.
“Sec. 4926. The error mentioned in the last section may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterward, on motion in court.
“Sec. 4927. Such error is waived by failure to move for its correction at the time and in the manner prescribed in this chapter, and all errors in the decisions of the court on any of the motions named in this chapter are waived unless excepted to at the time, which may be done by the clerk*198 noting at the end of such decision words of the following import: ‘To which decision the plaintiff (or defendant) excepts.’
“Sec. 4928, The defendants shall be entitled to have the correction made in the following cases: First. When the action has been commenced by equitable proceedings the defendant, by motion made at the time of filing his answer, may have them changed into proceedings at law when it appears that, by the provisions of section 4919, the plaintiff should have adopted proceedings at law, unless his answer presents an equitable defence. Second. When the action has been commenced by proceedings at law, the defendant, by motion made at or before the time of filing his answer, may have them changed into equitable proceedings when it appears that, by the provisions of section 4918, the plaintiff should have adopted proceedings in equity.”
The question here is, in case the action is erroneously brought on the wrong side of the docket, and no motion is made by either of the parties to the suit to transfer, what is it that is waived? In such a case must the court proceed at the trial in accordance with the principles of the forum, at law or in equity, as the case may be, or must it try the case in accordance with the principles involved, as set up in the pleadings? By a careful reading of the statute, it seems to us quite clear that in such a case the court should pursue the latter course, that is, try the case in accordance with the principles involved, as set up in the pleadings. The language of the statute is: “An error of the plaintiff' as to the kind of proceeding adopted shall not cause the abatement or dismissal of the action, ’’ etc. “The error mentioned may be corrected, ” etc. “Such error is waived, ” etc; that is, the error of bringing the suit on the wrong side of the docket. But, if such error is not objected to, .the suit is not to be dismissed. It remains on the docket to be tried in the
' The second assignment of error is to the effect that the court erred in admitting in evidence the letter of the defendant J. L. Sparks, heretofore set out. Inasmuch as this letter was introduced in evidence for. the sole purpose of proving a new promise on the part of the defendant J. L. Sparks in case the court should find that” the original obligation was barred by the statute of limitations, and having found on that branch of the case that the original obligation was not barred, we cannot see that it would be either profitable or desirable that we should pass upon that question. Upon the question of the statute of limitation, where the debt is not barred, a new promise is immaterial, and therefore whether the particular language set up as the new promise be sufficient or not is also immaterial; and the introduction in evidence of that which is claimed to be the new promise, whether sufficient or not, being immaterial, as tending to prove none of the issues, is technical error, but not reversible error, because it does not tend to prejudice the defendant’s cause. Finding no error -in the proceedings of the court below, the judgment is affii'med.