5 Kan. 134 | Kan. | 1869
By the Court,
This action was founded in the court below upon a promissory note, and the petition in said court shows upon its face, that the claim was barred by the statute of limitations, before the action was ^brought. The defendant made an appearance in the action, but neither answered nor demurred to the petition. He objected to the sufficiency of said petition, claiming that it did not state facts sufficient to constitute a cause of action, for the reason that the petition shows that the claim was barred as aforesaid. He first raised the question of its sufficiency by objecting to the introduction of the evidence; Secondly, by objecting to the rendering of any judgment, and Thirdly, by moving for a new trial.
The questions for this court to decide are :
2. Did the defendant by failing to answer or demur to tbe petition, thereby wave his right to object to its sufficiency in any other way ?
3. Could the defendant properly raise the question of the bar of the statute of limitations, in the way he did; that is, by objecting to the evidence and judgment and moving for a new trial, as aforesaid ?
limitation of actions. The limitations, applicable to this action, is as follows: (Comp. Laws 127) “A civil action, other than for the recovery of real property, can only be brought within the following periods : within three years, an action upon a specialty, or any agreement, contract or promise in writing.” This statute, if construed literally, would at the end of three years take away all remedy from the plaintiff. It would operate by its own force as an absolute bar to a recovery, and the courts could not properly wait for an objection to come from the defendant by answer or demurrer or otherwise, but should take notice of the bar on their own motion. Such seems to have been the earlier opinion of the English courts under their statute. Brown v. Hancock, Cro. Car., 115.
Common Law rule. But afterwards, and since that time, the common law courts of England, as well as of this country — becoming more hostile to such statutes, and considering them unjust in their operation — have ruled otherwise. These courts have held for a great many years that a declaration, which shows upon its face that the claim is barred by the statute, is nevertheless a good declaration; and they have not allowed the defendant to raise the question of the statutory bar, in any way, ex-
Exceptions. The defendant was never, in any court, required to negative in his pleading the exceptions which take a case out of the operation of the statute; but in all cases, if the plaintiff’s claim appeared to be barred, it devolved upon him to show that it was not barred by setting up some one of the exceptions. In courts of chancery he had to do this in his bill. In courts of common law he did it in his replication; but in the latter court he was not required to do so until the question had been raised by the plea of the defendant. Ang. on Limit., § 285, and cases there cited; Story’s Pq. PL, 6th Pd., § 484.
Statute. In such states as have abolished—as ours has —all distinctions between actions at law and suits in equity, and adopted a code of practice resembling more the old chancery practice than it does that of the common law, it seems their courts have followed more closely the chancery practice. Yan Santvoord, in his work on pleading, [2d Pd., 268, 269; see also 688,] speaking of the rule of pleading the statute in common law actions, says: “ The rule of pleading, it is conceived, is changed, and if it distinctly appears on the face of the
Tbe decision of this court in tbe case of Backus v. Clark [1 Kan., 303] is not in conflict with any of tbe foregoing decisions, and neither does it in any way affect this case. In that case tbe time when tbe cause of action accrued was not alleged in tbe petition, as it is in this case, and hence tbe petition in that ease did not show upon its face that tbe cause of action was barred. If tbe copy of tbe account sued on, which in that case, was attached to tbe petition and made a part thereof by tbe petition itself, is to be considered as a part of tbe petition, then tbe petition clearly showed that tbe cause of action was not barred.
In tbe case at bar, we clearly think that theo petition does not state facts sufficient to constitute a cause of action.
Waiver of Objections. The next question is whether a defendant in default, who has neither answered nor de
In the case of Auld & Auld v. Butcher & Butcher [2 Kas. 135] the court decided that the defendants had by their answer and other proceedings inconsistent with the defense of the statute of limitations, waived their right to set up such defense, or to object to the petition, which showed upon its face that the claim was barred, yet they seem to recognize the doctrine, that the defendants could not waive such right by merely failing to demur or answer to such a petition. Using their own language the court says, “That the lack of material facts in the petition to constitute a cause of action, is not waived by failing to demur for that cause, or answer, is fairly inferable from the language of that section — meaning section 98 of the code. [Cbmp. Laws, 140.] This decision, however, is not entirely applicable for our purpose, as the court do
And thirdly and lastly, if the defendant did not by failing to demur or answer to the petition, waive his right to raise the question of the bar of the statute of limitations in some other way, then it necessarily follows that he did raise it properly, for he raised it in every way he could, and at every stage of the proceedings.
The judgment of the court below is reversed, and the case is remanded for further proceedings.