McConnell v. Spicker

• Citation: 87 N.W. 574,15 S.D. 98
• Parties: S. R. MCCONNELL , Plaintiff and appellant, v. F. T. SPICKER, Defendant and respondent.
• Decision Date: 02 October 1901
• Court: South Dakota Supreme Court

15 S.D. 98, 87 N.W. 574 (1901)

S. R. MCCONNELL

,

Plaintiff and appellant,

v.

F. T. SPICKER,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. A. W. Campbell, Judge

Reversed

T. M. Grant and Howard Babcock

Attorneys for appellant.

Barrington & Lane

Attorneys for respondents.

Opinion filed October 2, 1901

FULLER, P. J.

Answering the complaint in this action on a promissory note, the defendant, omitting formal parts, “alleges that the cause of action contained in plaintiffs’ complaint did not accrue within six years before the commencement of this action.” Whether the court was justified in sustaining a demurrer to such answer is practically the only question essential to a determination of this appeal. The defense being a personal privilege, which is waived unless properly asserted, the party in favor of whom our statute of limitations has run must plead it by way of answer in order to secure the immunity afforded. Section 4833 of the Compiled Laws expressly provides that “the objection that the action was not commenced within the time limited can only be taken by answer.” Dielmann v. Citizens’ Nat. Bank, 8 SD 263, 66 N.W. 311 (1896). In the case of Searles v. Knapp, 5 SD 325, 58 N.W. 807, 49 Am.St.Rep. 873 (1894), an answer in identical language was held sufficient to appraise the plaintiff that the defendant relied upon the bar of the statute. Independently of a statute requiring the point to be raised by answer, and for reasons most cogent, the general rule is that the bar must, in some appropriate way, be pleaded by a defendant who intends to take advantage of the limitation, even though the complaint clearly shows that the full period within which the action may be brought has elapsed. 13 Enc. Pl. & Prac. 184; Sands v. St. John, 36 Barb, 628; State v. Spencer, 79 Mo. 314; Thompson v. Packer, 68 Ala. 387. It expressly appears from the complaint that appellant executed the note in the state of Minnesota on the 7th day of April, 1892, and permanently removed therefrom immediately, and before a cause of action had accrued; that by the constant exercise of due diligence respondents were unable to find appellant until the spring of 1899, when they discovered that he had been for some time in Wisconsin, and, removing from that state, had finally settled at Sisseton, in this state, on or about the 1st lay of May, 1897, where he has at all times since resided and conducted business in the name of M. C. Spicker & Co. This action was commenced on the 1st day of May, 1899, and there is nothing to indicate that the statute of another state has run against the claim. If the complaint be true, a question likely to arise in the case is whether in this forum respondents have lost their remedy by the lapse of time. As the law of the state where a contract is made governs its construction, and that of the state where the remedy is sought prescribes the terms of its enforcement, it is settled, in this, jurisdiction and universally, that questions arising on the statute of limitations affect the remedy merely, and not questions relating to the merits. Wagon Co. v. Matthiessen, 3 Dak. 233, 14 N.W. 107. Concerning statutes of limitation Judge Story says:

“The object of them is to fix certain periods within which all suits shall be brought in the courts of a state, whether they are brought by or against subjects or by or against foreigners. And there can be no just reason and no sound policy in allowing higher or more extensive privileges to foreigners than are allowed to subjects.”

Story, Confl. Laws, 718. Under our provisions an action on a promissory note must be commenced within six years from the time it became due and payable unless the maker is absent from this state when the cause thus accrued; and in that event such action may be commenced any time within six years after his return. Comp. Laws, §§ 4850-4859. To effectuate the general intention of the legislature, a liberal construction must be applied to al] its enactments, and while, strictly speaking, this debtor has never returned, his case is clearly within the spirit of the foregoing-statute, which did not commence to run in his favor until he came within the jurisdiction of our courts. Hoyt v. McNeil, 13 Minn, 390 (Gil. 362); Mason v. Manufacturing Co. (Md.) 32 Atl. 311, 29 L.R.A. 273, 48 Am.St.Rep. 524; Bulger v. Roche, 22 Am. Dec. 359; Chevrier...