Pinkham v. Pinkham

• Decision Date: 20 February 1901
• Docket Number: 11,168
• Citation: 85 N.W. 285,61 Neb. 336
• Parties: MARTHA J. PINKHAM, APPELLEE, v. JOHN H. PINKHAM ET AL., APPELLEES, AND EMMA E. RYAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

85 N.W. 285

61 Neb. 336

MARTHA J. PINKHAM, APPELLEE, v. JOHN H. PINKHAM ET AL., APPELLEES, AND EMMA E. RYAN ET AL., APPELLANTS

No. 11,168

Supreme Court of Nebraska

February 20, 1901

APPEAL from the district court for Otoe county. Heard below before RAMSEY, J. Rehearing of case reported in 60 Neb. 600. Former judgment adhered to.

Affirmed.

A. C Ricketts and Henry H. Wilson, for appellants.

John C Watson, F. E. Brown and Frank Irvine, contra.

OPINION

SULLIVAN, J.

After a thorough consideration of the questions discussed by counsel we are entirely satisfied that the views expressed in the opinion filed at the last term (Pinkham v. Pinkham 60 Neb. 600, 83 N.W. 837) are sound and should be adhered to. The statute of limitations was not properly pleaded and is, therefore, not in the case at all. In the reply of each of the appellants it is alleged: "3. That the alleged action for the reformation of said instrument set forth in the amended answer did not accrue to the defendant, John H. Pinkham, within the statutory period provided by law for proceedings for the reformation of instruments." This is only the statement of a legal conclusion unaccompanied by the facts from which the conclusion is deduced; it is in effect an assertion that, in the opinion of the pleader, the appellee's counter-claim is barred. It has often been held here and elsewhere that such an allegation tenders no issue and may be disregarded altogether. Barnes v. McMurtry, 29 Neb. 178, 45 N.W. 285; Scroggin v. National Lumber Co., 41 Neb. 195, 59 N.W. 548; Jenks v. Lansing Lumber Co., 97 Iowa 342, 66 N.W. 231; Eno v. Diefendorf, 102 N.Y. 720; Pope v. Andrews, 90 N.C. 401. In Scroggin v. National Lumber Co., supra, which was an action to foreclose a mechanic's lien, the answer stated: "That this suit was not brought within the time required by law, nor until after the so-called lien of plaintiff had expired by lapse of time." Of this averment the court, speaking through Commissioner IRVINE, said (p. 200): "The answer in this respect pleaded no facts. It simply averred that the suit was not brought within the time required by law, nor until after the lien had expired. These were statements of mere conclusions of law and not of any facts. Where a plea of the statute of limitations is required, the facts must, as in other cases, be pleaded and not the pleader's conclusions of law. * * * The plaintiff in error, not having raised the defense by demurrer, was required to raise it by answer, and this being so, he was required to raise it by an answer which would have been sufficient against demurrer to the answer itself. We hold, therefore, that the defense of the statute, not being raised at all by demurrer or sufficiently by answer, was waived." But if the statute of limitations had been properly pleaded, the plea could, under no circumstances, do more than defeat the counter-claim and bar affirmative relief; it could in no manner affect appellee's right to act defensively and by proving his equitable ownership of the property show that appellants' claim of title and right of possession is...