Hower v. Aultman, Miller & Co.

Citation42 N.W. 1039,27 Neb. 251
PartiesHOWER v. AULTMAN, MILLER & CO.
Decision Date11 July 1889
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. “All actions or causes of action which are or have been barred by the laws of this state, or any state or territory of the United States, shall be deemed barred under the laws of this state.” Section 18, Civil Code.

2. Under the Code, as prior to it, on a demurrer to an answer, when the complaint fails to state a cause of action, judgment on such demurrer should be in favor of the defendant.

3. Where a petition was demurrable as not containing facts sufficient to constitute a cause of action, it being shown upon its face that the plaintiff's cause of action was barred by the statute of limitations, and an answer was filed pleading the statute of another state, in which the defendant resided at the time of service upon him in this state, and to which a general demurrer was filed by the plaintiff and sustained by the district court, it was held--First, that the allegations of the answer were sufficient to constitute a defense; and, second, that, as the petition failed to state a cause of action, the demurrer should have been overruled.

Error from district court, Webster county; GASLIN, Judge.J. M. Chaffin, G. R. Chaney, and C. E.

Davis, for plaintiff in error.

Case & McNewy, for defendant in error.

REESE, C. J.

This was an action upon a promissory note. An answer was filed to the petition, when defendant in error filed a demurrer to the answer, which was sustained by the district court. From the judgment of the court sustaining the demurrer, and rendering judgment in favor of the plaintiff in the action, defendant brings error to this court. There is but one question presented, and that is as to the statute of limitations. The pleadings being short, they will be here copied in full. The petition was as follows: Plaintiff complains of the defendant for, on or about Sept. 6, 1877, the defendant made, executed, and delivered to the plaintiff herein a certain promissory note in writing, in words and figures as follows: ‘$83. Decatur, Ind. Sept. 6, 1877. On or before the 1st day of June, 1879, I promise to pay, to the order of Aultman, Miller & Co., eighty-three dollars, with interest at six per cent. from date, and attorney's fees, payable without relief from valuation or appraisement laws at the banking office of Adams county, for value received in one Buckeye mower and reaper, and with annual interest at ten per cent. per annum from maturity on the amount then due until paid. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and non-payment of this note, and all defense on the ground of any extension of time of its payment that may be given by the holders or holder to them, or either of them, and it is further agreed that this note shall be due on demand if the maker attempt to move out of the state. For the purpose of obtaining credit, I certify that I own in my own name ______ acres of land in the township of ______, county of ______, state of ______, which acres are improved, and the whole worth ______, and that ______, and it is unincumbered, except the am't of ______. I also am worth of personal property ______, over all indebtedness and legal exemptions, and there are no judgments against me.’ Plaintiff further says that payment has been demanded and refused, and that by the conditions of said note defendant agreed to pay attorney's fees if suit was brought to enforce payment; that said attorney's fees amount to the sum of twenty-five dollars; that there is now due and unpaid on said note the sum of one hundred fifty-eight and 20-100 dollars, besides interest at ten per cent. from Oct. 20, 1886, and the further sum of twenty-five dollars for attorney's fees, as aforesaid, for which sum plaintiff demands judgment, besides costs of this suit.” The answer was as follows: “The defendant, in answer to the plaintiff's petition, admits the execution of said note, but says that no part of the amount claimed in said note has at any time been paid, and no promise in writing or otherwise has been made to pay said note, or any part thereof, since the same became due, or any acknowledgment made by this defendant of said alleged indebtedness; that the cause of action stated in the...

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