Toby v. Allen

| Kan. | Jan 15, 1866

By the Court,

Crozier, C. J.

The only question presented in this case for the consideration of the court, is: at what time, with reference to the claim of Toby, did the three years contemplated by the twentieth section of the Code, commonly called the three years limitation, expire ?

It is agreed that, regularly, and regardless of the exceptions on account of absence, &c., mentioned in the Code, the claim of the plaintiff in error would have been barred on the 5th day of May 1864, but that during the interval between the maturity of the note and the time mentioned, there were one hundred and eighty-nine days to be excluded from the computation on account of the absence of the maker of the note, and the want of an administration after his death, which would bring the time at which an action would be barred down to November 10th, 1864. The first affirmative action by the plaintiff in error upon his claim was taken February 21st, 1865, at which time he insists it was not barred, for two reasons: first, the three years statute of limitations embodied in the Code was suspended on the 21st of July 1864, the date of the first publication, by reason of the- commencement of the original suit as to him; and second, it remained suspended for want of the notice contemplated by the seventy-fourth section of the act concerning executors and administrators. These propositions will be considered in the order stated,

I. The statute of limitations of this state, unlike, the English statute, and that of some of the states copied therefrom, applies directly to the subject of the controversy ; to the predicate of the action sought to be taken in the proceeding. And it can make no difference what may be the technical position in this suit, whether plaintiff or defendant, of the party seeking to enforce the claim. If it be such as requires affirmative action on the part of the individual seeking to enforce it, it is wholly immaterial whether he occupies the position of plaintiff or defendant. The prohibition of the statute applies with equal force to it, be he in either position, so that it is wholly unnecessary to inquire whether the claim is properly the subject of an original action, of a set-off, counter-claim, or cross petition. In either event the operation of the statute is precisely'the same.

In the case at bar, the law gave the plaintiff the right to make Toby a party defendant. Being a party, the law also gave Toby a right to set up his claim as against Allen, the administrator, and the mortgaged premises; and in regard to his claim he stood in precisely the same position with reference to the statute of limitations that he would have occupied had he commenced the suit himself at the time he first took affirmative action upon his demand. Making him a party did not affect his claim in the least, with reference to the statute. That gave him the privilege of setting it up in that proceeding, and nothing more. Had the plaintiff omitted to make him a party the court at any time before final judgment upon his own application, would have made him a party; in which event it would not have been pretended that the statute would have ceased to run as to his claim until such application was made. Why, in the nature of things, then, should the making of him a party originally suspend the running of the statute ? Whether that law shall operate to bar his claim is made to depend entirely upon his own action, subject to the conduct of the debtor as to absence, concealment, payment, &c. Its operation in no event is made to depend upon the action of third persons. No matter whp shall commence a suit or who shall forbear, the operation of the statute depends wholly, subject to the exceptions above referred to, upon the action of the owner of the claim sought to be enforced. Hence, although the suit, as to Toby, as between him and the insurance Company, was commenced July 21st, 1864, the date of the first publication, with reference to his claim as between himself and his debtor, the statute was not thereby suspended.

II. But Toby contends, secondly, that because no notice as required by the seventy-fourth section of the act concerning executors and administrators (Comp. L., p. 523,) was given, the statute of limitations which was suspended by the death of the debtor, remained suspended as to his claim. It is true that the death of the debtor operates to suspend the statute until an administrator is appointed, because there must be a party to be sued. But the giving of the notice of his appointment by the administrator as contemplated by the section referred to does not affect the running of the statute. That section refers only to the presentation of claims to the administrator, requiring that all claims, whatever their date, be presented within three years from the date of the' letters. If a .claim would be barred by the general statute in one year from the date of the letters, the giving of the notice would not extend the time two years; nor would a failure to give the notice have that effect. Rut if a claim would not be barred by the general statute, by reason of not being due at the death of the intestate, until say four years after the date of the letters, the giving of the notice might possibly cut off the last year; yet the failure to give the notice could not operate to extend the time within which the suit might be brought beyond the four years. The two statutes apply to entirely different things. One refers to the bringing of a suit generally ; the other to the presentation of a claim to an administrator. Wherefore, although no notice of his appointment was given by the administrator, the running of the general statute embodied in the Code, was not, for that reason, suspended.

In the opinion of this court, the action of the District Court, in adjudging the right of the plaintiff in error to enforce his claim to be barred, was not erroneous. The judgment of that court will be affirmed.

All the justices concurring.