Scroggin v. McClelland

• Decision Date: 20 September 1893
• Citation: 37 Neb. 644,56 N.W. 208
• Parties: SCROGGIN v. MCCLELLAND.
• Court: Nebraska Supreme Court

37 Neb. 644

56 N.W. 208

SCROGGIN

v.MCCLELLAND.

Supreme Court of Nebraska.

Sept. 20, 1893.

Syllabus by the Court.

1. The statute of limitations begins to run in favor of the drawer of a check at the latest after the lapse of a reasonable time for the presentment of the check.

2. The courts of this state will not take judicial notice of the laws of other states, and in the absence of proof such laws will be presumed to be the same as our own.

Commissioners' decision. Error to district court, Nuckolls county; Morris, Judge.

Action by John W. McClelland against Leonard K. Scroggin on a check. Plaintiff had judgment, and defendant brings error. Reversed.John M. Ragan and S. A. Searle, for plaintiff in error.

H. W. Short, for defendant in error.

IRVINE, C.

The defendant in error sued the plaintiff in error in the district court of Nuckolls county upon a check drawn by plaintiff in error to the order of defendant in error for $746.22, upon Scroggin & Sonbankers,Mt. Pulaski, Ill., and dated November 10, 1882. He alleged presentment and dishonor of the check November 14, 1888. The suit was begun February 20, 1889. The plaintiff in error in answer pleaded--First, the statute of limitations; second, that the check was presented and paid at or about the day of its date; third, matter claimed to operate in estoppel, which it will not be necessary here to notice. The reply amounts to a general denial. The case was tried to the court, a jury being waived, and there was a general finding and judgment for the defendant in error.

One of the errors assigned, and the only one which we shall notice, is that the court erred in not finding that the action was barred by the statute of limitations. This assignment raises the question as to when the statute begins to run upon a bank check in an action against the drawer of the check. A check is in some respects analogous to a bill of exchange, or a note payable on demand. On notes payable on demand the statute of limitations has been held to run from the date of the note. Little v. Blunt, 9 Pick. 488; Newman v. Insurance Co., 13 Wend. 267. Where a drawer of a check had no funds to meet it, it was held that the statute begun to run from the date of the check. Brush v. Barrett, 82 N. Y. 400. It is true that the last case was decided upon the theory that, inasmuch as the drawer had no funds in the bank to meet the check, presentment immediately would have been unavailing, and a cause of action, therefore, arose in favor of the payee as soon as the check was given. We can see, too, that there is a distinction between a note payable on demand and a check, as an action lies at once against the maker of a demand note without actual prior demand. Norton v. Ellam, 2 Mees. & W. 461; Burnham v. Allen, 1 Gray, 496;Bridge Co. v. Perry, 11 Ill. 467. Nevertheless a check is not designed for circulation, but for immediate presentment. Bank v. Miller, (Neb.) 55 N. W. Rep. 1064. The time within which presentment must be made is quite limited. Ordinarily, when the payee of a check and the bank upon which it is drawn are in the same town, a check must be presented before the close of banking hours the day after it is received, (see cases cited in note to Holmes v. Briggs, [Pa. Sup., 18 Atl. Rep. 928,] 17 Amer. St. Rep. 804;) otherwise it should be forwarded for presentment the day after it is received by the payee, and presented the day after it is received by the agent...