33 Haw. 409 | Haw. | 1935
Plaintiff, through his counsel, has interposed herein a petition for a rehearing basing his application on the ground that this court erred in its definition of "valid, legal claim" as the term is used in Act 194, L. 1931, as amended, plaintiff contending that the court overlooked the established rule that a claim barred by the statute of limitations does not lose its character as a valid, legal claim since the remedy only is barred and that upon the removal of the obstacle by the repeal of the statute the claim may be prosecuted in the same way as it might have been prosecuted originally. Reiterating what we have said in our former opinion (ante p. 379), a claim barred by the statute of limitations is not a valid, legal claim. Aside from the authority in support of this doctrine of law heretofore cited we call attention to the decision in Kyle v. Wells, 55 Am. Dec. 555: "When a claim is barred by the statute of limitations, it ceases to be a legal, and becomes a mere moral, right." The supreme court of Wisconsin in Eingartner v. Illinois SteelCo., 79 N.W. 433, said: "While the statute of limitations acts on the remedy, when the period of limitation has run the bar of the statute, itself, is property and cannot be taken from its possessor adversely; and the effect of that vested right is to extinguish the claim upon which it operates, and in that sense it *410 is properly said that the bar of the statute of limitations extinguishes the right. It is as effective as payment or any other satisfaction of a claim, because the remedy to enforce it cannot be restored or any remedy given in place of it contrary to the will of the owner of the right of defense." And in Martin v. Broach, 50 Am. Dec. 306, the rule is announced that "where there has been an acknowledgment of a debt barred by the statute of limitations the recovery must be on the new promise and not on the old debt."
We entertain no doubt whatsoever that the intention of the legislature was to provide funds to pay any legal and valid claim of the plaintiff which he could establish in a court of competent jurisdiction against the Territory or the city and county. Any portion of plaintiff's claim which was barred by the statute could not have been recovered upon by the plaintiff any more than he might have recovered upon a debt which had been paid and discharged. Such a claim does not fall within the definition of a legal and valid claim in the sense in which that term is used by the legislature.
The second ground of the petition for a rehearing is based upon the plaintiff's contention that the demurrer should have been overruled because a part of plaintiff's claim is within the statutory period and therefore not subject to attack by a general demurrer. In support of this orthodox rule counsel refers us to the decision of this court in Scott v. Pilipo,
The petition for rehearing is denied.