ERROR
to the district court for Webster county. Tried below before
GASLIN, J.
REVERSED AND REMANDED.
J. M
Chaffin, G. R. Chaney, and C. E. Davis, for plaintiff in
error, cited: Maxwell's Pl. and Pr., 4th Ed., 121, 146;
Hedges v. Roach, 16 Neb. 674; AEtna Ins. Co. v
Baker, 71 Ind. 102; Aurora City v. West, 7
Wall. 93; Cooke v. Graham's Admr., 3 Cranch
(U.S.), 235; Fox v. Wray, 56 Ind. 426; Wood on
Limitation of Actions, p. 128, sec. 64; p. 139, sec. 68; p
172, sec. 71; Bell v. Morrison, 1 Pet. (U. S.), 361;
Fort Scott v. Hickman, 112 U.S. 150; Mayberry v.
Willoughby, 5 Neb. 372.
Case & McNeny, for defendant in error.
OPINION
REESE, CH. 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 September 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 endorsers
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 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
unencumbered except the amount 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 and fifty-eight and 20/100
dollars, besides the interest at ten per cent from October
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 petition
did not accrue within five years next before the commencement
of this action; that said defendant left the
state of Indiana in the summer of 1879, and came to the state
of Kansas, where he has ever since enjoyed a continuous and
bona fide residence, and where he resided at the
time this action was brought, and where he now resides; that
by the statute of limitations of the said state of Kansas, in
force at the time the suit was instituted, said action was
barred. A copy of subdivision one (1) of section eighteen
(18) of the Civil Code of the state of Kansas is hereunto
attached and made a part of this answer, which reads as
follows:
"'Civil
actions, other than for the recovery of real property, can
only be brought within the following periods after the cause
of action shall have accrued: First, within five years; an
action upon any agreement or promise in writing.'
"Wherefore
defendant demands judgment for his costs, and all other
proper relief."
The
demurrer was based upon the ground alone that the facts
stated in the answer were not sufficient to constitute a
defense to the action. As will be seen by reference to the
petition, the note matured on the 1st day of June, 1879. It
was not alleged that any payments had ever been made on it
after its execution. In...
