F. M. Slagle & Co. v. Bushnell

• Decision Date: 21 December 1944
• Docket Number: 8655
• Citation: 16 N.W.2d 914,70 S.D. 250
• Parties: F. M. SLAGLE & CO., Appellant, v. W. F. BUSHNELL, Respondent.
• Court: South Dakota Supreme Court

70 SD 250, 16 NW2d 914 (1944)

F. M. SLAGLE & CO.,

Appellant,

v. W. F. BUSHNELL,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Union County, SD

Hon. L. L. Fleeger, Judge

#8655—Affirmed

A. J. Beck, Elk Point, SD

Attorney for Appellant.

O. C. Donley, Elk Point, SD

Attorney for Respondent.

Opinion Filed Dec 21, 1944

SMITH, Judge.

This appeal by plaintiff, in an action wherein it sought to recover from defendant a balance of about $1,200 for lumber, coal, and supplies delivered to defendant during a period extending from 1926 to 1937, confronts us with questions we propose to separately state and decide.

The defense of the statute of limitations, SDC 33.0232(4), was pleaded by way of amendment to the answer. The plaintiff contends that the record reveals a manifest abuse of discretion by the trial court in allowing the amendment.

The action was commenced in September, 1939. The complaint included an exhibit which itemized the charges and credits from which the claimed balance resulted. Twelve sheets of single spaced typing were required to set forth these items. The original answer consisted of admissions,, denials and an averment of payment. When the answer was, served counsel for defendant told counsel for plaintiff he did not intend to plead the statute of limitations. Thereafter, a pre-trial hearing was had in an attempt to narrow the issues. After some delay a referee was named to take the testimony of a particular witness, and subsequently a different referee was appointed to hear the testimony and find the facts. After the taking of testimony was completed, but before the issues had been argued and submitted to the referee for decision, the defendant made the motion to amend his answer. By that time, more than two years had elapsed since the action was commenced. Neither the failure to originally plead this defense nor the delay in seeking to amend was justified by the showing of the defendant. In resistance to the motion the plaintiff urged the facts we have recited plus the volume of testimony taken under the issues as previously framed. Quoting at length from the opinions of this court in Heegaard et al. v. Dakota Loan & Trust Co., 3 SD 569, 54 NW 656, and O’Neill v. Jones, 24 SD 79, 123 NW 495, plaintiff brands the statute of limitations as a technical defense and asserts that, because of the nature of that defense, it was error to allow the belated amendment in the circumstances.

A motion to amend a pleading is addressed to the discretion of the trial court. Cornell v. Johnson, 59 SD 617, 241 NW 740. This court is admonished by our rules to freely grant such applications in furtherance of justice. SDC 33.0914. When a ruling upon such a motion is presented for review, the question is not whether the judges of this court would have made an original like ruling, but rather whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion. Our function in reviewing matters which rest in the discretion of the trial court is to protect litigants from conclusions which exceed the bounds of reason. 5 CJS, Appeal and Error, p. 476, § 1583.

In determining whether an amendment will further justice, it is proper for a court to consider the nature of a proffered new defense. In Heegaard et al. v. Dakota Loan & Trust Co., supra, the defense advanced after the testimony was closed in a jury case was one that plaintiff could have avoided by dismissing and commencing anew after complying with certain statutory requirements. This court reversed the trial court because it deemed unreasonable its ruling allowing the amendment. In O’Neill v. Jones, supra, the suggested new defense alleged that the payee in the notes in suit was a foreign corporation which had not complied with the statute requiring such corporations to appoint an agent for the service of summons at the time the notes were given. This court affirmed the ruling disallowing the amendment. No modern case has been called to our attention, however, wherein a reviewing court has reversed the ruling of a trial court allowing a plea of the statute of limitations by way of amendment. That defense was formerly in disfavor with the courts. However, it was Justice Story who wrote:

“It has often been matter of regret in modern times, that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that, instead of being viewed in an unfavorable light, as an unjust and discreditable defense, it had received such support, as would have made it what it was intended to be, emphatically, a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts, and to suppress those prejudices which may rise up at a distance of time, and baffle every honest effort to counteract or overcome them.”

Bell v. Morrison et al., 1 Pet 351, 26 US 351, 360, 7 LEd 174.

By the aid of such counsel the defense has gained in favor. It has been said that the statute of limitations should not be discriminated against but should be treated like any other defense. Thomas et al. v. Price, 33 Wash. 459, 74 P. 563, 99 AmStRep 961. This court has held it to be a meritorious defense and has affirmed a ruling allowing it to be set up by amendment. Houts et al. v. Bartle et al., 14 SD 322, 85 NW 591. That ruling accords with the overwhelming weight of authority. 34 AmJur 350; Walters v. Webster, 52 Colo. 549, 123 P. 952, Ann. Cas. 1914A, 24. See Wrightson v. Dougherty, 5 Cal. 2d 257, 54 P. 2d 13, and Davenport v. Stratton, Cal. Sup., 149 P. 2d 4.

We turn to a consideration of the circumstances we have described. The original pleadings revealed just such a controversy as the statute seeks to discourage. The complaint asserted stale demands and the defendant not only denied the verity of items of debt and credit alike, but pleaded payment. Aside from pointing out that counsel for defendant had the defense in mind at the time the original answer was served, the principal ground of resistance to the motion by the plaintiff was that it would be put to great inconvenience if it were required to reopen the testimony and deal with this new issue. For aught that appears the trial court reasonably could have concluded that the issue could be then as effectively met as though it had been originally pleaded. It is clear that the trial court was required to weigh in the balance the loss of an important and meritorious defense to defendant as against no more than serious inconvenience to the plaintiff. It cannot be said that it exceeded the bounds of reason in concluding that justice would be served by granting the motion.

In arguing these facts plaintiff urges a group of cases wherein courts of review have affirmed rulings disallowing a like amendment under somewhat similar circumstances. We think they are of doubtful value. They but decide that the trial court did not abuse its discretion. They do not hold that the ruling was impelled. A set of circumstances may afford room for a reasonable difference of opinion. By disturbing whichever ruling a trial court might have made in such an instance, a reviewing court would usurp its functions.

The amendment having been allowed, the plaintiff cannot now assert prejudice through surprise, because it failed to seek time and opportunity to cope with the additional defense. Lehman v. Smith, 40 SD 556, 168 NW 857, and Cornell v. Johnson, supra.

The views thus far expressed relieve us of the necessity of determining whether plaintiff lost his right to complain of the allowance of the amendment to the answer by subsequently serving an amended complaint and thereby investing defendant with a right to serve an amended answer embracing the challenged new defense. See Ann. Cas. 1918A, 211.

The next contention of the plaintiff is that the described account meets the requirements of SDC 33.0236 and hence the plaintiff’s cause of action accrued as of the date of defendant’s last purchase on October 6, 1937. This contention is foreclosed by McArthur v. McCoy, 21 SD 314, 112 NW 155.

The cited section reads:

“In an action brought to recover a balance due upon a mutual, open, and current account where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.”

SDC 33.0236.

The cited case holds that an account such as the complaint of plaintiff describes, wherein merchandise is charged and payments credited, lacks the mutuality and reciprocity of dealing required to render the statute applicable. Since that pronouncement the statute has been re-enacted without change by the 1919 and 1939 revisions and it is presumed that the Legislature intended that it should continue to receive that construction. Brink v. Dann, 33 SD 81, 144 NW 734, and Stewart v. Rapid City, 48 SD 554, 205 NW 654.

Under two connected contentions plaintiff asserts that the established facts invoke the principle that an acknowledgment by a debtor of his debt within the statutory period before the commencement of the action removes the cause of action from the statute of limitations. The referee found for plaintiff for the full amount of its claims. The trial court, on the other hand, took a different view of the evidence and through the application of the statute of limitations to all charges of the plaintiff for merchandise delivered more than six years prior to the commencement of the action, reduced plaintiff’s recovery to the sum of $42.54. Plaintiff...