69 Ark. 311 | Ark. | 1901
Lead Opinion
William M. Watkins brought this action against Francis C. Martin upon an open account for services rendered by him to the defendant. The defendant answered and denied the account, and, among other things, pleaded the three-years’ statute of limitation in bar of plaintiff’s right to maintain the action. The defendant recovered -judgment, and the plaintiff appealed. The burden was upon the plaintiff to show that his action was
not barred by the statute of limitations. Leigh v. Evans, 64 Ark. 26; McNeil v. Garland, 27 Ark. 343; Carnall v. Clark, ib. 500; Railway v. Shocraft, 53 Ark. 96. He has utterly failed to do so.
Judgment affirmed.
Rehearing
ON REHEARING.
Opinion delivered November 23, 1901.
The appellant moves for a rehearing in this cause, because the court, in holding that he failed to show that this action was brought within the time prescribed by the statute of limitations, overlooked the fact that the indorsement of the clerk upon the complaint therein shows that it was filed in the Pulaski circuit court, and that the writ was issued, on the 9th day of November, 1894, and the fact that the last service for which he sought to recover compensation was rendered upon the 24th day of November, 1891.
The action was based upon an open account for services rendered. It was commenced on or after the 3d day of October, 1896.' The indorsement of the clerk upon the complaint, showing that it was filed, and that the writ was issued, on the 9th day of November, 1894, was the day on which it was filed in another action, which had been dismissed. The trial court could not take judicial notice of what was done in the other or latter suit. Gibson v. Btichner, 65 Ark. 84, 86. That should have been proved. The three-years’ statute of limitation having been pleaded' in bar of the action, the burden of proof was upon the appellant to show when his cause of action accrued, and that the writ issued was sued out within -the three years, or, if two actions were brought upon the same account, and one was dismissed before the commencement of the other, that the first was begun within the time, and that a nonsuit was suffered therein, and that the last was brought within one year after the nonsuit. Sand. & H. Dig., § 4841. But he did not make the proof or offer to do so.
The motion for rehearing is denied.