Badley v. Birchby

• Decision Date: 05 August 1971
• Citation: 487 P.2d 798
• Parties: Bruce P. BADLEY et al., Appellants (Plaintiffs below), v. Edward E. BIRCHBY and James C. Birchby, Appellees (Defendants below). no. 3898.
• Court: Wyoming Supreme Court

Page 798

487 P.2d 798

Bruce P. BADLEY et al., Appellants (Plaintiffs below), v. Edward E. BIRCHBY and James C. Birchby, Appellees (Defendants below).

no. 3898.

Supreme Court of Wyoming.

Aug. 5, 1971.

Bruce P. Badley, Sheridan, for appellants.

Lawrence A. Yonkee, of Redle, Yonkee & Arney, Sheridan, for appellees.

Before McINTYRE, C. J., and PARKER, McEWAN and GRAY, JJ.

PER CURIAM.

Bruce P. Badley, executor of the estate of R. G. Diefenderfer, deceased, and Nelle D. Diefenderfer, widow of the deceased, appealed from an order granting the defendants' motion for summary judgment. Plaintiffs had sued to recover legal fees allegedly due deceased from defendants. The trial court held the plaintiffs' action barred bythe statute of limitations.

R. G. Diefenderfer died on January 17, 1969. He practiced law in Wyoming for some 57 years. Edward E. Birchby, one of the defendants, is an attorney practing in Sheridan, Wyoming.

This suit was filed on February 16, 1970, in the district court of Sheridan County. Plaintiffs claim the sum of $13,000 for legal services rendered by Mr. Diefenderfer. It was alleged that he appeared on behalf of defendants in three separate cases. On March 6, 1970, defendants answered the complaint alleging that Mr. Diefenderfer was paid in full for his services and that plaintiffs' suit was barred by the statute of limitations.

Depositions of the defendants were taken, as adverse parties on behalf of the plaintiffs. Defendants took the deposition of the plaintiff, Bruce P. Badley, and Margaret E. Stroup, a secretary for the deceased. On April 30, 1970, defendants served and filed a motion for summary judgment and asked that the motion be granted on the ground there was no genuine issue of material fact regarding defendants' defenses that the claims mentioned in the complaint accrued more than eight years before the action was commenced and plaintiffs' claims were barred by the statute of limitations, and defendants were entitled to judgment as a matter of law. Plaintiffs made no response to defendants' answer or motion.

The trial court, on June 17, 1970, granted defendants' motion for summary judgment and found that there was no genuine issue as to any material fact regarding the defense that the claims alleged in the complaint accrued more than eight years before the action was commenced, and plaintiffs' claims were barred by the statute of limitations.

Plaintiffs admit and the record clearly shows that the action was not commenced within eight years after the cause of action arose. More than eight years elapsed between the time the cause of action arose and Mr. Diefenderfer's death. However, plaintiffs argued that the ten year statute of limitations applied, not the eight year statute. The pertinent statutes are as follows:

'Section 1-12, W.S.1957, 'Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; * * *'

Section 1-17, 'Within eight years an action upon a contract not in writing, either express or implied; * * *'

'Section 1-21, 'An action for relief, not hereinbefore provided for, can only be brought within ten years after the cause of action accrues.'

Plaintiffs' entire argument that the ten year statute should apply and not the eight year one, is not lenghy and is therefore set forth in full.

'The defendants would appear to base their defense upon Wyoming Statutes 1957, § 1-17, which provides that an action upon a contract not in writing must be brought within eight years.

'We would submit at this time that the applicable statute would not be § 1-17, but that this cause would come within the so-called 'residual clause' of Wyoming Statutes 1957, § 1-21, reading as follows:

An action for...