Denton v. City of Atchison
| Decision Date | 08 June 1907 |
| Citation | 76 Kan. 89,90 P. 764 |
| Parties | DENTON v. CITY OF ATCHISON. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A plaintiff who brings an action within the statutory period of limitation, and dismisses the same without prejudice after the limitation has expired, may bring a new action within one year after such dismissal, under section 23 of the Civil Code of Procedure; but, where the new action is dismissed more than one year after the first dismissal, that section is no authority for the bringing of another new action.
[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 557.]
Error from District Court, Atchison County; B. F. Hudson, Judge.
Action by Henry Denton, administrator, against the city of Atchison. Judgment for defendant, and plaintiff brings error. Affirmed.
L. F Bird, for plaintiff in error.
W. A Jackson, for defendant in error.
Henry Denton, as administrator of the estate of Thomas M. Hackett, deceased, brought this action against the city of Atchison to recover on a street improvement contract. The work was to be done at the rate of 90 cents per lineal foot, for which he was to receive bonds issued against the property abutting on the improvement, and was to be paid only out of the money in the city treasury collected from assessments made in 1885. Upon the completion of the work in 1884, bonds were issued, but the assessment of abutting property was enjoined at the instance of the property owners, and these suits, in which the plaintiff was a party and wherein injunctions were granted, were dismissed in 1893. No further steps were taken by the city nor the plaintiff until 1897, when the plaintiff brought an action against the city to recover upon the claim involved in the present action. That action pended until 1899, when it was dismissed by the plaintiff without prejudice to a future action. Before May 17, 1900, a similar action was brought by the plaintiff against the city, and it remained pending and undetermined until April 26, 1904, when it was dismissed by the court because of the failure of the plaintiff to appear and prosecute the same. On April 24, 1905, more than 20 years after the work was done, this action was brought, but the trial court held that the delay was fatal, and that it was barred by the statute of limitations.
It is contended by plaintiff that no statute of limitations could run against his cause of action while the injunction suits of the property owners were pending. These were dismissed, as we have seen, in 1893, and it is claimed that plaintiff’s original action, which was brought against the city within five years of that time, was commenced in good time. That suit was dismissed in 1899, and a new action was instituted within one year from the dismissal; and the contention of the plaintiff is that it too was commenced in good time. The second suit was dismissed in 1904, and within one year after the dismissal the third suit was begun; and it is insisted that, as it was brought within one year after the dismissal of a live action, it is still in time. Assuming that the operation of the statute of limitations was postponed by the injunction suits, and that the plaintiff’s first action against the city was brought within the statutory period, it would follow that the second action, instituted as it was within one year after the dismissal of the first, was properly brought under section 23 of the Civil Code of Procedure. It reads: "If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure." Does that section authorize repeated new actions within...
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Artis v. Dist. of Columbia
...of 1847 allowed a new action within six months of dismissal "notwithstanding the intervening bar of the statute"); Denton v. Atchison, 76 Kan. 89, 90 P. 764, 765 (1907) (statute adopted "the common-law rule of ‘journeys account’ "); English v. T.H. Rogers Lumber Co., 68 Okla. 238, 173 P. 10......
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Seaboard Corp. v. Marsh Inc.
...a new action within six (6) months after such failure.” K.S.A. 60–518 is a saving statute. As this court explained in Denton v. Atchison, 76 Kan. 89, 91, 90 P. 764 (1907), “[t]he general periods of limitation are not changed by [the saving] provision, but it is intended to give a party who ......
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Goldsmith v. Learjet, Inc.
...because remedial, "should be liberally construed, with a view of carrying into effect the purpose of the legislature." Denton v. Atchison, 76 Kan. 89, 92, 90 P. 764 (1907). The heirs' proposed method of reconciling the borrowing and saving statutes and giving effect to both is as follows: "......
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