53 Colo. 269 | Colo. | 1912
delivered the opinion of the court:
In the court below,- Yost brought an action on a promissory note. The defendant, Irwin, filed a general demurrer to the complaint. Afterward, and before the disposition of the general demurrer, the defendant, on application supported by
The objection that an action is barred by the statute of limitations cannot be raised by general demurrer, nor is it available under a general denial. It must be specially, pleaded in the answer, or when it appears on the face of the complaint that the action is barred it may be pleaded by special demurrer. If it is not pleaded one way or the other, it is deemed waived. —Hunt v. Hoyt, 10 Colo. 278; Jennings v. Rickard, 10 Colo. 395; Brown v. Bell, 46 Colo. 163.
Section 56 Revised Code provides for seven grounds of demurrer. When any one of them appears upon the face of the complaint it may be taken advantage of. Section 60 provides that, “when any of the matters, enumerated as demurrable, do not appear upon the face of the, complaint, the objection may be taken by answer.” The sixth g-round of demurrer — that the complaint does not state facts sufficient to constitute a cause of action — is the only one by which it was ever claimed that the plea of the statute of limitations may be made available. In the cases cited above, this court has said that the plea of the statute of limitations cannot be taken advantage of by demurrer on the sixth ground. If it cannot be taken- advantage of by demurrer on any of the grounds enumerated in the code, it must follow that the apparent bar
“If, therefore, plaintiff states in his complaint ultimate facts from which the law implies a new promise, such facts are not surplusage; they are the very essence of the action; and are necessary to prevent a successful attack by demurrer. And the only reason why a failure to state them would not render the complaint obnoxious to a general demurrer is, that defendant must specifically and affirmatively indicate his intention to invoke the statute, whether he pleads by demurrer or by answer.
If the answer contains proper denials of the facts averred in the complaint.as the foundation of the new. promise, the issue is made; the additional plea of the bar is only important as showing defendant’s intention to claim the benefit of the statute. It cannot be that in such case plaintiff must, in his replication, deny the plea and reply the new promise. He does not care to deny the bar of his action upon the old contract, for he relies upon the new one; and the new prom
If plaintiff fails to state in the first instance facts from which the new promise may be inferred, and the bar of the statute is pleaded by answer instead of demurrer, he must of course reply the new promise; if lie does not, a motion is in order for judgment upon the pleadings.”
It must follow from this that, inasmuch as the plaintiff may plead the statute, either by special demurrer or by answer, the plea is in apt time if made in the answer. So that the defendant did not waive his right to plead the statute by filing a general demurrer, and it was not waived when the court permitted him to file a special demurrer. It was within the discretion of the trial judge to grant him leave to file the special demurrer and under the circumstances the judge did not abuse his discretion.
If the defendant had filed an answer without pleading-the statute, and afterwards the judge had permitted an amendment for the purpose of letting- in the plea, authorities cited by the plaintiff would have then been for consideration, but not under the circumstances. The case of Spaur v. McBee, 19 Ore. 76, has no bearing. One of the grounds of demurrer in Oregon was that the action was not commenced within the time limited by the code. The code also provided that if no objection be taken of the matters enumerated as demurrable they should be deemed waived, except the general demurrer and objection for want of jurisdiction. Under such a code, of course the plea of the statute of limitations must be taken bji- demurrer if appearing- upon the face of the complaint. Our code has no such ground for demurrer. The Washington case cited indicates that its code has a provision similar to that of the Oregon code. From what has been said, no error is apparent in the record before us, and the judgment is, therefore affirmed.
Judgment affirmed.