Lindholm v. Heithecker

• Decision Date: 10 March 1923
• Docket Number: 24,273
• Citation: 213 P. 671,113 Kan. 96
• Parties: A. E. LINDHOLM, sole owner of THE LINDHOLM PIANO COMPANY, Appellant, v. W. H. HEITHECKER and EVA HEITHECKER, Appellees
• Court: Kansas Supreme Court

213 P. 671

113 Kan. 96

A. E. LINDHOLM, sole owner of THE LINDHOLM PIANO COMPANY, Appellant, v. W. H. HEITHECKER and EVA HEITHECKER, Appellees

No. 24,273

Supreme Court of Kansas

March 10, 1923

Decided January, 1923.

Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROMISSORY NOTE--Limitation of Action--Note in Custodia Legis--Suspension of Statute. The fact that the ownership of a promissory note was in dispute between payee and a third party over whom defendant had no control, or was held as collateral security by a third party over whom defendant had no control, or was in custodia legis in another action in which the defendant was not a party and over which he had no control did not suspend the running of the statute of limitations in his favor.

2. SAME--Demurrer to Bill of Particulars Properly Sustained. Where a bill of particulars showed on its face that the cause of action was barred by the statute of limitations, it was proper to sustain a demurrer thereto.

Norman E. Hill, of Salina, for the appellant.

P. J Galle, and James L. Galle, both of McPherson, for the appellees.

OPINION

HOPKINS, J.:

Plaintiff appeals from an order of the district court sustaining a demurrer to his bill of particulars. The bill of particulars set out in substance that on the 27th of August, 1914, plaintiff sold defendants a piano on a conditional sale installment contract, providing for a payment of $ 18 on the 12th day of September, 1914, $ 8 on the first day of October following, and $ 8 each month thereafter until the full sum of $ 275 and interest should be paid. The contract further provided that the title, ownership and right of possession should not pass from plaintiff until the note and the installments thereof and interest were fully paid; also, that in the event of nonpayment of the note or any of the installments at the time or times when the same should become due, the plaintiff was authorized to declare the note and debt due and payable at once.

The action was in replevin. It was filed in justice court on the 9th of July, 1921, and was later taken to the district court where plaintiff procured leave to amend his bill of particulars, as follows:

"In connection with and supplemental to the original bill of particulars, which is made a part hereof, the plaintiff further says that the note attached to the original bill of particulars was turned over to H. P. Nelson & Co., as collateral security, and said note was held by said company or the trustee of H. P. Nelson & Co., bankrupt, from September, 1914, to February, 1921, and that the ownership of said note was in dispute between said dates; but that in February, 1921, the plaintiff became possessed of said note and has ever since said date owned the same."

Section 6907 of the General Statutes of 1915 provides:

"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, and not afterwards: . . . 3d. Within two years: . . . an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property."

Plaintiff contends that the allegation that the note was in possession of H. P. Nelson & Co., bankrupt, or bankrupt's trustee, as collateral security from September, 1914, to February, 1921, and that the ownership of said note was in dispute, tolled the statute. He says in his brief:

"It would seem strange that on account of the laches of the trustee in bankruptcy of H. P. Nelson and Company, that this appellant should lose his property rights, he having been guilty of no laches on his part. He was powerless at any time to act in his own behalf, for the reason that said note was in the custody of the law at all times between said dates."

To sustain his contention he cites Christie v. Scott, 77 Kan. 257, 94 P. 214, which states:

"Where it appears by a pleading that more than five years have elapsed since the maturity of a note before the bringing of an action thereon, but facts are alleged in the pleading which, if true, suspended the running of the statute for such time that the bar thereof had not fallen at the commencement...