Denton v. Detweiler

• Decision Date: 07 November 1929
• Docket Number: 5190
• Citation: 282 P. 82,48 Idaho 369
• Court: Idaho Supreme Court
• Parties: D. M. DENTON, Appellant, v. D. F. DETWEILER, ELMER AMAN, L. G. HILL, S. N. PITULLO, J. A. CROM, PETER ERICKSON, H. MURPHY and FRANK DEKLOTZ, Defendants; TIMES PRINTING & PUBLISHING COMPANY, LTD., a Corporation, Intervenor and Respondent

282 P. 82

48 Idaho 369

D. M. DENTON, Appellant, v. D. F. DETWEILER, ELMER AMAN, L. G. HILL, S. N. PITULLO, J. A. CROM, PETER ERICKSON, H. MURPHY and FRANK DEKLOTZ, Defendants;

TIMES PRINTING & PUBLISHING COMPANY, LTD., a Corporation, Intervenor and Respondent

No. 5190

Supreme Court of Idaho

November 7, 1929

LIMITATION OF ACTION-COUNTERCLAIM-DEMURRER-PLEADING-AMENDMENTS-NEW CAUSES OF ACTION.

1. Where amendment to pleading introduces new or different cause of action and makes new or different demand, statute of limitations continues to run until amendment is filed.

2. Tests for determining whether amended pleading introduces new cause of action are: (1) Would recovery had upon original bar recovery under amended pleading? (2) Would same evidence support both of pleadings? (3) Is measure of damages the same in each case? (4) Are allegations of each subject to same defenses?

3. In action to recover balance of purchase price of stock, in which corporation intervened claiming stock was unlawfully issued without consideration and demanded judgment against plaintiff for damages for conversion, cross-complaint against intervenor to recover money loaned intervenor, if treated as amendment of complaint, held to set up new cause of action and, more than seven years having elapsed since its accrual cross-action was barred by C. S., secs. 6609, 6610, 6617.

4. Under C. S., sec. 6695, par. 2, counterclaim is subject to operation of statute of limitations.

5. General rule is that defense of statute of limitations, C S., secs. 6609, 6610, 6617, is not available during pendency of action unless claim was barred when action was commenced.

6. In passing on demurrer to cross-complaint raising defense of statute of limitations, court could consider only the pleading before it, and could not refer to other pleadings in cause to determine when action was commenced.

7. Cross-demand must be pleaded as fully as an original cause of action; it must be sufficient in itself without recourse to other pleadings unless expressly referred to therein.

8. Plea of bar of statute of limitations (C. S., secs. 6609, 6610 6617) may be raised by demurrer, where it clearly appears on face of complaint that action did not accrue within statutory time.

9. Cross-complaint filed by plaintiff against intervenor after statute of limitations had run against claim, if considered as in nature of counterclaim under C. S., secs. 6695, 6699, held barred by statute of limitations (secs. 6609, 6610, 6617), where crosscomplaint made no reference to commencement of action or filing of complaint in intervention and failed to plead any facts tolling running of statute.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Hugh A. Baker, Judge.

Plaintiff brought cross-action against intervenor for money loaned. From judgment dismissing cross-complaint on sustaining demurrer interposing statute of limitations, plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondent.

Wolfe & Nielson, for Appellant.

The sole question raised by this appeal is, Was the intervenor so brought into the suit or did it so far bring itself into the suit by the filing of its complaint in intervention as to be subject to the judgment of the court in all respects, and to so stop the further running of the statute of limitation? It is appellant's contention that the statute was tolled by the bringing of the suit and in any event by the filing of the "complaint in intervention." (See Dittgen v. Racine Paper Goods Co., 164 F. 85; Idaho Trust & Sav. Bank v. Nampa & Meridian Irr. Dist., 29 Idaho 658, 161 P. 872; Union Lumber Co. v. J. W. Schouten & Co., 25 Cal.App. 80, 142 P. 910; Bogart v. Crosby, 91 Cal. 278, 27 P. 603; Born v. Castle, 22 Cal.App. 282, 134 P. 347; Frost v. Witter, 132 Cal. 421, 84 Am. St. 53, 64 P. 705; Whittier v. Visscher, 189 Cal. 450, 209 P. 23; C. S., sec. 6626.)

Sweeley & Sweeley, for Respondent.

A cross-bill must be as perfect as any other bill, and the same strictness in stating the grounds relied on is required when affirmative relief is sought as is required of the plaintiff in the original bill. (6 Standard Ency. of Procedure, p. 272, and cases cited.)

There is nothing in the cross-complaint of appellant showing any facts which it is claimed toll the statute. The matters referred to in the brief of appellant are disclosed, if at all, only by other pleadings and records which cannot be considered in passing upon the question raised by respondent's demurrer.

"As a general rule only the pleading demurred to may be considered in passing on the demurrer. The court must assume that the facts are as alleged and cannot assume the existence of any facts not alleged, nor find facts in aid of the pleadings, nor hear evidence on the questions involved, nor consider what evidence may be introduced at the trial." (6 Standard Ency. of Procedure, p. 981.)

"The court cannot consider . . . . the other pleadings in the case nor pleadings that have been abandoned or superseded." (Ibid, p. 983; Columbia Savings & Loan Assn. v. Clause, 13 Wyo. 166, 78 P. 708; Friedersdorf v. Lacy, 173 Ind. 429, 90 N.E. 776; Chicago & E. R. Co. v. Chaney, 50 Ind.App. 106, 97 N.E. 181.)

If there was legal cause for the delay in filing the cross-complaint setting up a cause of action against the intervenor it should have been set forth in the pleading. (Ryan v. Woodin, 9 Idaho 525, 75 P. 261.)

VARIAN, J. Budge, C. J., and Givens, T. Bailey Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

Plaintiff brought an action against defendants upon a contract for the sale of certain capital stock of Times Printing & Publishing Company, Limited, alleging that defendants, as part of the purchase price of said capital stock, assumed and agreed to repay plaintiff $ 3,000, borrowed by him to pay for a car of paper used by said Times Printing & Publishing Company, Limited, of which sum $ 2,000 was unpaid. Defendants answered plaintiff's second amended complaint, denying the material allegations thereof, and alleging that the stock sold them was not the property of plaintiff, was issued to him without consideration, and that said Times Printing & Publishing Company, Limited, was the owner thereof and claimed any balance due plaintiff from said contract of sale, and prayed that it be brought in as a party to the action. On motion of defendants the Times Printing & Publishing Company, Limited, was ordered to interplead, and filed an answer denying the allegations of the complaint, and by way of cross-complaint alleging that the stock sold by plaintiff was unlawfully issued, without consideration, and in effect that it was treasury stock belonging to intervenor, and demanded judgment against plaintiff for $ 15,000 damages as for conversion of the stock sold to defendants, and prayed it be adjudged any balance due plaintiff upon his contract with defendants. Plaintiff answered, denying the allegations of the said cross-complaint, and a trial resulted in a verdict for plaintiff for the full amount prayed for in the complaint. From a judgment entered on the verdict June 4, 1923, and order denying a motion for new trial, the defendants and intervenor appealed to this court, where the judgment and order were reversed. (Denton v. Detweiler, 44 Idaho 343, 256 P. 946.)

After the coming down of the remittitur, plaintiff, by leave of the court, on July 20, 1927, filed a cross-complaint against intervenor, Times Printing & Publishing Company, Limited, alleging the corporate existence of intervenor; that on or about April 1, 1920, he loaned it $ 3,000, used by it in paying for a car of paper; that intervenor has refused to make repayment thereof, except the sum of $ 1,000 paid on account of said loan May 10, 1920; and demanded judgment for $ 2,000 and interest. To this cross-complaint, the intervenor demurred, setting up the plea of the statute of limitations (C. S., secs. 6609, 6610, 6617). The demurrer was sustained with leave to amend. Plaintiff declined to amend, and prosecutes this appeal from a judgment dismissing his cross-complaint.

The only question presented is, Was the cause of action set up by the cross-complaint barred by either of the statutes of limitation interposed by the demurrer?

If we treat the filing of the so-called cross-complaint of plaintiff against the intervenor, Times Printing & Publishing Company, Limited, as an amendment of the original, or second amended complaint, we have then the setting up of a new cause of action based upon the separate promise of the intervenor to plaintiff. So far as appears from the said cross-complaint, the defendants have no connection therewith. Plaintiff loaned the Times Printing & Publishing Company, Limited, $ 3,000, of which $ 1,000 has been paid. On the other hand, in the original (second amended) complaint, plaintiff sued upon a contract with defendants for the purchase of corporate stock in intervenor corporation, part of the purchase price being the assumption of a debt incurred by plaintiff to obtain $ 3,000 to purchase paper for intervenor. We have, then, two different contracts between different parties.

While an amendment setting up no new cause of action or claim, and making no new demand, relates back to the filing of the original complaint, and the running of the statute of limitations is arrested at that point (37 C. J., p. 1068, sec. 507; 2 Wood on Limitations, 4th ed., secs. 307(1), 307(2), p. 1525), if the amendment introduces a new or different cause of action and makes a new or different demand, the statute continues to run until the amendment is filed. (37 C. J., p. 1074, sec. 511; 2 Wood on Limitations, 4th ed., sec. 307(3), p. 1533.)

"Tests for determining the identity of causes of...