Jackson v. The Prairie Oil & Gas Company

• Decision Date: 09 February 1924
• Docket Number: 24,939
• Court: Kansas Supreme Court
• Parties: E. D. JACKSON, Appellant, v. THE PRAIRIE OIL & GAS COMPANY, Appellee

222 P. 1114

115 Kan. 386

E. D. JACKSON, Appellant, v. THE PRAIRIE OIL & GAS COMPANY, Appellee

No. 24,939

Supreme Court of Kansas

February 9, 1924

Decided January, 1924.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

LIMITATION OF ACTIONS--Action Begun--Failure Otherwise Than on Its Merits--Statute Construed. Under section 22 of the code (R S. 60-311), the right to bring the new action is given only in cases where the time limited for bringing such an action has expired during the pendency of the suit which failed otherwise than on the merits, and if, at the time of such failure, there remains any portion of the time limited for bringing such action, the provisions of this section do not apply.

W. N. Banks, O. L. O'Brien, Walter L. McVey, Jay W. Scovel, all of Independence, and Seth V. Conrad, of Marshfield, Mo., for the appellant.

T. J. Flannelly, and Paul B. Mason, both of Independence, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injury. A demurrer was sustained to plaintiff's petition and he has appealed.

The injury for which the action was brought was sustained September 4, 1919. In March, 1920, plaintiff filed an action for damages in the district court of Creek county, Oklahoma. Service was obtained upon the defendant and the action was removed to the district court of the United States for the eastern district of Oklahoma and was there dismissed by plaintiff May 20, 1921. Later, plaintiff filed an action in the district court of Montgomery county, Kansas, against the same defendant for the same injury, and summons was issued February 8, 1922. Defendant demurred to this petition for the reason, first, that it did not state facts sufficient to constitute a cause of action, and, second, that it showed upon its face that the action was barred by the statute of limitations. The court sustained the demurrer. Appellee contends that the ruling of the court was justified upon each of the grounds of the demurrer, but it is necessary for us to examine only the second one.

This being an action for damages for personal injury, it is conceded that the two-year statute of limitations applies. (R. S. 60-306, 3d clause.) The injury having occurred September 4, 1919, and this action having been commenced February 8, 1922, the action is barred unless, because of the action filed in Oklahoma, the plaintiff can avail himself of section 22 of our code, which reads as follows:

"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." (R. S. 60-311.)

Appellee contends that the provisions of this section of our statute do not apply in this case, because the regular two-year statute of limitations had not expired at the time the action in Oklahoma was dismissed. That action was dismissed May 20, 1921, and the two years given by the statute of this state in which to bring such an action did not expire until September 4, 1921, hence the plaintiff had more than three months after the dismissal of the action in Oklahoma to file an action in this state within the regular two-year statute of limitations.

In Denton v. Atchison, 76 Kan. 89, 91, 90 P. 764, construing the above statute, it was said:

"In effect the section provides that any action commenced before the statute of limitations has run and disposed of otherwise than upon the merits after the statute has run may be brought anew within one year after such disposition. . . . The general periods of limitation are not changed by this provision, but it is intended to give a party who within the proper time brought an action which was disposed of otherwise than upon the merits after the statute of limitations had run a year of grace in which to reinstate his case and obtain a determination upon the merits. It is a substitute for the common-law rule of 'journeys account,' in which a plaintiff whose writ was abated for some matter of form which did not go to the merits might have a new writ within a reasonable time, computed by the number of days which the plaintiff must spend in journeying to reach the court. Under the rule of our statute, if the dismissal occurs after the time limit has expired the plaintiff has one year from that dismissal to bring a new action. To get the benefit of this extension two things are essential; First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired."

In O'Neil v. Eppler, 99 Kan. 493, 495, 162 P. 311, the court quotes approvingly from Denton v. Atchison, supra, as follows:

"'To get the benefit of this extension two things are essential: First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired.'"

In Kansas City Hydraulic P. B. Co. v. National Surety Co., 167 F. 496, considering our statute of limitations, it was said:

"Article 3 of the Kansas Code of Civil Procedure was taken almost literally from the original New York Code of Procedure of 1848. it contains a general scheme of limitations for all the ordinary civil actions. In New York, however, it was intended to fit into an immense body of statutory laws, the accumulation of half a century, among which were many specific limitations for particular actions. The same situation was true in a less degree in Kansas when the Code of Civil Procedure was adopted there. Section 4443 [R. S. 60-303] was designed to meet this condition. It simply ordains that, when a particular period is fixed by an independent statute for the bringing of a specific action, that period shall control rather than the period specified in the general scheme contained in article 3. It deals exclusively with the period of limitation. At the end of that article, however, are found seven sections which do not deal with the period of limitation, but with general subjects applicable to all limitations of actions. In the New York Code they are set off in a separate chapter headed 'General Provisions as to Time of Commencing Actions.' They involve such matters as concealment of the defendant or his absence from the state, disabilities, judicial restraints, reversal of judgments on appeal or dismissal otherwise than on the merits, part payment or other acknowledgments of liability, and when actions shall be deemed to be commenced. Most of these provisions have been a part of the law of the limitation of actions from the very inception of that law:"

In 25 Cyc. 1314, in discussing the purpose of the section of our statute under consideration, it is said:

"This exception or proviso of the general statute of limitations is intended to reach all those cases where a suit is brought, and the merits of the action fail to be tried without the fault of plaintiff, and the period of limitations becomes complete during the pendency of the suit."

In Rogers v. Fidelity Savings Bank & Loan Co., 172 F. 735, it was held:

"Kirby's Dig. Ark., § 5083, providing that if an action shall be commenced, and plaintiff suffer a nonsuit, he may...