Laidley v. Smith

• Decision Date: 12 March 1889
• Citation: 32 W.Va. 387
• Court: West Virginia Supreme Court
• Parties: Laidley v. Smith, *(Green, Judge, Absent.)

32 W.Va. 387

Laidley

v.Smith,

*(Green, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1889.

Decided March 12, 1889.

1. Limitations of Actions Receivers.

On the 16th day of June, 1865, in the chancery cause of Ruffner and Long v. Donnally and others pending in the Circuit Court of Kanawha county, a decree was entered directing the receiver to lend out certain money in his hands to the credit of said suit. In pursuance of said order W., the receiver, loaned, to S. $125.00 and took a promissory note therefor 'payable on demand to W., receiver of the Circuit Court of said county with interest from date, the 5th day of January, 1886, the note showing on its face that it was given for money borrowed from the chancery cause of B. & L. v. D. et als. W. died, and L. was appointed general receiver of said court in his stead June 2, 1877. G. S. L., as special receiver, was directed on the 10th of April, 1884, he having been appointed such special receiver, to collect said fund, and in pursuance of said direction he instituted this suit against S. and filed his declaration in the month of November, 1885. The defendant interposed the plea of the statute of limitations, to which the plaintiff objected and replied generally but tiled no special replication. Held, The claim, upon which said suit was predicated, was barred by the statute of limitations, and if the plaintiff relied upon any of the statutory or other exceptions to take said claim out of the operation of said statute, it should have been set forth in a replication to said plea.

2. Point 1 of syllabus in State v. Miller, 26 W. Va. 106, con-

sidered and re-affirmed.

Miller Gallaher for plaintiff in error.

J. M. Laidley and W. Mollohan for defendant in error.

English, Judge.

This was an action of debt brought in the Circuit Court of Kanawha county by Charles C. Lewis, receiver of said Circuit Court, the declaration was filed on : iH8

the first Monday in November, 1885. The action was founded on a promissory note bearing date on the 5th day of January, 1866, which note is in the words and figures following:

" $125.00. On demand, we, or either of us, promise and bind ourselves to pay Levi J. Woodyard, receiver of the Circuit Court of Kanawha county, one hundred and twenty-five dollars borrowed money from the chancery cause of Ruffner & Long v. Donally and als., with interest from date until paid. Witness our hands this 5th day of January, in the year 1866,

[Signed]" Isaac N. Smith,

" Benjamin II. Smith.

"Credit May 23, 1868, paid by B. II. Smith, fifty dollars/' On the 22d day of January, 1886, the defendant demurred to the plaintiff's declaration, and plaintiff joined; and the court having considered said demurrer overruled the same, and thereupon the defendant pleaded nil debet and payment and tendered a special plea in writing, to wit, the statute of limitations, to which the plaintiff objected, and the court took time to consider thereof, and on the 11th day of July, 1888, the defendant B. IT. Smith having departed this life, and Charles C. Lewis having been appointed the executor of his last will and testament and having qualified as such, and George S. Laidley having been appointed as special receiver in the case of Ruffner and Long v. Donnally et als., in the place of said Charles C. Lewis, general receiver, to prosecute the suit at bar and to collect the fund in litigation in this cause, the suit was revived in the name of said George S. Laidley as such special receiver therein, and by consent the same was revived against said Charles C. Lewis as executor of said B. H. Smith, deceased, as defendant therein, and the objection to the plea of the statute of limitations tendered by B.H. Smith in his lifetime having been argued and considered by the court was overruled, and said plea was ordered to be filed, and the plaintiff replied generally thereto, and the action was submitted to the court in lieu of a jury; and the court, having heard the evidence and arguments of counsel found the issues therein for the plaintiff and gave judgment for the plaintiff for the sum of $205.01 with inter- est thereon from the 11th day of duly, 1888, and costs, to which ruling and judgment of the court the defendant tendered a bill of exceptions, which was signed, sealed and saved to him, which bill of exceptions shows, that upon the trial of said action the plaintiff to support the issue on his part gave in evidence said note, executed, as aforesaid by 13. If. and I. N. Smith, also a decree of the Circuit Court of Kanawha county dated June 1(3, 1865, made in the case of Ruffner and Long v. Donallg and, others, directing the receiver to lend out said money on good security, also the order entered in said chancery cause on the 10th of April, 1884, directing C. C. Lewis, general receiver, to collect all the money due to the credit of said suit and, if necessary, to institute legal proceedings for that purpose, also an order of said court made June 2, 1877, appointing Charles C. Lewis general receiver in lieu of Levi J. Woodyard, deceased, showing his qualification, and also directing the executor of said Woodyard to turn over all moneys, bonds, and securities in his hands, both as general and special receiver, to the new receiver, and directing said new receiver to do and perform such duties with regard to the funds and securities which may come into his hands as the said Woodyard was required by any decree or order of the court to do and perform, or such as he was required by law to do and perform; also another decree in said chancery suit of Ruffner and Long v. Donallg et als., appointing G. S. Laidley special receiver and directing him to collect said funds and pay over the same to the parties entitled thereto, which was all the evidence heard upon the trial of the cause for either party.

The note, on which this suit was predicated, bears date on the 5th day of January, 1866, and the declaration seems to have been filed on the first Monday in November, 1885. The writ is not made part of the record, but it is presumed, it bore date more than ninety days before the filing of the declaration. The suit then was instituted nearly twenty years after the note was executed. The plea of the statute of limitations was interposed; and one of the questions, perhaps the most important question, in the case is, whether said plea should have been sustained by the court. Under the statute., which was in force at the time of the execution o said note, every action to recover money, which was founded on any contract in writing signed by the party to be charged thereby or by his agent, but not under seal, should be brought within five years next after the right...