Rosa v. Devingenzo
Decision Date | 31 May 1933 |
Docket Number | 5897 |
Citation | 24 P.2d 1051,53 Idaho 213 |
Parties | AUGUST ROSA, Appellant, v. GENNARO DEVINGENZO, ANTONIA DEVINGENZO, Husband and Wife, and MOLLY MORRISON, LUCY VAN EVEREN LISH and HENRY E. LISH, Respondents |
Court | Idaho Supreme Court |
LIMITATION OF ACTIONS-PLEADING-DEMURRER-APPEAL AND ERROR-ASSIGNMENTS OF ERROR-COURT RULES.
1. Demurrer, averring that complaint showed that action was barred by statute of limitations, without giving number of section and subdivision relied on, did not sufficiently plead statute (I. C. A., sec. 5-808).
2. Complaint may state good cause of action, though showing conclusively that cause is barred by limitations.
3. Trial court's action in sustaining general demurrer to complaint cannot be considered on appeal, where not assigned as error, presented in appellant's brief, or mentioned in oral argument (Supreme Court Rule 42).
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Appeal from an order sustaining a demurrer, and from the judgment of dismissal. Affirmed.
Judgment of the lower court affirmed, with costs to respondents.
F. M Bistline, for Appellant.
P. C O'Malley, J. A. Carver and Samuel Adelstein, for Respondents.
This is an action instituted to foreclose a real estate mortgage of $ 600, with interest. To the second amended complaint respondent filed a general and special demurrer, paragraphs 1 and 2 of which reads, as follows:
The demurrer to the complaint was heard before the court below, which disposed of the same by making the following order:
From which order and judgment this appeal was taken.
The appellant assigns but one error, namely: "The court erred in sustaining respondents' special demurrer setting up the bar of the statute of limitations."
The statute of limitations is not sufficiently pleaded by respondents' demurrer. Section 5-808, Idaho Code Annotated:
"In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provision of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish on the trial the facts showing that the cause of action is barred."
In the case of Kelly v. Leachman, 3 Idaho 629, 33 P. 44, where similar allegations of a demurrer were being considered, this court said, at page 635:
The order of the lower court sustaining the demurrer and dismissing the action was based solely on the ground, "that the complaint of the plaintiff does not contain facts sufficient to constitute a cause of action against the defendants," which is not based on the special demurrer but on the ground of the general demurrer of the respondents, paragraph one of the demurrer above set forth. The court having specifically stated the reason for sustaining the demurrer and dismissing the action, necessarily excludes any other reason.
(Chemung Min. Co. v. Hanley, 9 Idaho 786, 794, 77 P. 226, 228.)
Later this court again spoke, in the case of McLeod v. Rogers, 28 Idaho 412, 154 P. 970, as follows, at page 415:
(Citing many cases.)
The question, as to the statute of limitations, is not in this case; it was not properly pleaded by respondent, nor was the court's order based on the same. Consequently, there is...
To continue reading
Request your trial-
Resource Engineering, Inc. v. Siler
...as this, it is necessary to plead the particular section of the statute of limitations relied upon by the pleader. Rosa v. Devingenzo, 53 Idaho 213, 24 P.2d 1051 (1933); Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121 (1913); Wasatch Mines Co. v. Hopkinson, 24 Utah 2d 70, 465 P.2d 1007 (19......
-
State v. Hirsch
... ... court for consideration. (Thomas v. Union Sav. Etc., ... Co., 38 Idaho 247, 221 P. 132; Rosa v ... Devingenzo, 53 Idaho 213, 24 P.2d 1051; Bicandi v ... Boise Payette Lbr. Co., 55 Idaho 543, 44 P.2d 1103.) ... The ... refused ... ...
-
Fortner v. Cornell, 7222
...special grounds of demurrer not having been ruled on are not before us for consideration. (Rosa v. Devingenzo, 53 Ida. 213 at 216-17, 24 P.2d 1051.) though the face of a complaint discloses the cause of action may be barred by the statute of limitations, such point must be raised by special......
-
Judy v. Reilly Atkinson & Company, Inc.
... ... (Rule 42, Rules of Supreme ... Court of Idaho, p. 61; Coeur d'Alenes Lead Co. v ... Kingsbury, 56 Idaho 475-483, 55 P.2d 1307; Rosa v ... Devingenzo, 53 Idaho 213-217, 24 P.2d 1051; ... Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381.) ... MORGAN, ... J. Ailshie, C. J., ... ...