Newby's Adm'R v. Warren's Adm'R
| Citation | 277 Ky. 338 |
| Parties | Newby's Adm'r v. Warren's Adm'r. |
| Decision Date | 10 March 1939 |
| Court | United States State Supreme Court (Kentucky) |
1. Insane Persons. — Seven-year and not five-year limitation statute was applicable to suit on bond of a committee appointed for person of unsound mind (Ky. Stats., secs. 2549, 2550, 2551).
2. Limitation of Actions. — Statutes of limitation must be strictly construed.
3. Limitation of Actions. — Generally, a statute of limitations does not begin to run until there is a person in being capable of bringing a suit.
4. Limitation of Actions. — Action on bond of surety for committee appointed for person of unsound mind, brought within seven years after death of such person, and granting of administration
on her estate, was not barred by limitation, although action was brought more than seven years after death of committee, in view of statute prolonging limitation in case of disability, notwithstanding fact that the action might have been brought by next friend (Ky. Stats., secs. 2525, 2549, 2551).
Appeal from Pulaski Circuit Court.
WESLEY & SON for appellant.
B.J. BETHURUM for appellee.
Before J.S. SANDUSKY, Judge.
Reversing.
In 1916, Emily Newby was adjudged to be a person of unsound mind and M.A. Dodson was appointed her committee with Marion Warren as surety on his bond. In 1926, Mr. Dodson died but no one has been appointed to succeed him in the office of committee. Emily Newby died in 1929 and the appellant, E.M. Montgomery, was appointed administrator of her estate a short time thereafter. In 1932, the surety, Marion Warren, died. This action was filed in 1935 against the appellee, Charles T. Warren, as administrator of the estate of Marion Warren to recover the sum of $964.30, alleged to be due Emily Newby's estate and never accounted for to her by her committee. Appellee answered, pleading the five-year statute of limitations, Kentucky Statutes, Section 2550, and the seven-year statute, Kentucky Statutes, Sections 2549 and 2551. Appellant filed a reply in avoidance of the limitations pleaded. He relies on Section 2525 of the Kentucky Statutes providing:
"If a person entitled to bring any of the actions mentioned in the third article of this chapter, except for a penalty or forfeiture, was, at the time of the cause of action accrued, an infant, or of unsound mind, the action may be brought within the like number of years after the removal of such disability or death of the person, whichever happened first, that is allowed to a person having no such impediment to bring the same after the right accrued."
Appellee demurred to the reply. The demurrer was sustained and appellant declined to plead further. Thereupon the court dismissed the petition and this appeal followed.
At the outset we may eliminate Section 2550 (the five-year statute) from further consideration. That statute by its terms applies only to the surety "for an executor, administrator, guardian, or curator, or for a sheriff to whom a decedent's estate has been transferred." No mention is made in this section of a surety on the bond of a committee and we are referred to no authority requiring that we read this addition into the statute. Appellee insists that because Section 2149 of the Kentucky Statutes provides that a committee shall give bond "in the same manner as a guardian" it implies that the same limitation should be applied. This may be sound from the standpoint of legislative policy but the fact remains that the legislature has not included sureties on the bond of a committee and we are not at liberty to do so. There would be more force in appellee's contention if no other limitation period were provided in other sections. But sections 2549 and 2551 expressly cover sureties on bonds given in any judicial proceeding or on any other obligation or contract. These omnium-gatherum sections were a part of the General Statutes as was section 2550. It does not appear why the specific causes of action against certain types of sureties were accorded a shorter period of limitation than was fixed as to others. In any event, statutes of limitation have always been strictly construed and we do not feel impelled to read exemptions into section 2550 which are not expressly put there. We conclude therefore that appellee is not entitled to the benefit of the five-year statute but comes within the seven-year statute.
In the absence of Emily Newby's disability, it seems clear that the appointment of M.A. Dodson's administrator, following his death, in 1926, would be the latest point at which to commence the running of the statutory period. Of course, if we should take this incident as the starting point then the bar of the seven-year statute of limitations would have fallen in 1933 at the latest. We are left therefore with the question of whether or not section 2525 of the Kentucky Statutes quoted above applies.
In Reid v. Hamilton, 92 Ky. 619, 18 S.W. 770, 771, 13 Ky. Law Rep. 849, a suit was brought by a married woman against the surety on a note which had matured more than seven years before the action was commenced. In avoidance of a plea of the seven-year statute of limitations it was contended that the running of limitations was suspended as to the married woman by the provisions of section 2525. However the Court said:
"It seems to us very clear that the purpose of this section was simply to prolong in favor of persons under disability the several periods prescribed by the preceding third article, within which the different classes of civil actions therein designated shall be commenced; and the saving or exception was not intended to apply at all to the distinct and subsequent provisions of article 6, for benefit of sureties, which are themselves exceptional."
Reid v. Hamilton, supra, was followed in Bowen v. Helm, 41 S.W. 289, 19 Ky. Law Rep. 486, without comment. If Reid v. Hamilton, supra, and Bowen v. Helm, supra, are sound law, then of course the running of the statutory period in favor of the surety was not suspended by the disability of Emily Newby and the claim is now barred.
It will be noted that section 2525 applies to persons entitled to bring any of the actions mentioned in the third article of the chapter on Limitations. It relates to the kinds of action mentioned in article 3 and not to the persons against whom the actions might be brought. Section...
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