Ryus v. Gruble

• Decision Date: 01 April 1884
• Parties: WILLIAM H. RYUS v. GEORGE GRUBLE
• Court: Kansas Supreme Court

3 P. 518

31 Kan. 767

WILLIAM H. RYUS v. GEORGE GRUBLE

Supreme Court of Kansas

April 1, 1884

Error from Wyandotte District Court.

APRIL 25, 1883, plaintiff Gruble recovered against defendant Ryus a judgment for $ 855.22 and costs. New trial denied. Defendant brings the case here. The facts are stated in the opinion.

Judgment reversed and cause remanded.

D. B Hadley, J. B. Scroggs, and J. A. Hale, for plaintiff in error.

R. P Clark, and Nathan Cree, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by George Gruble against William H. Ryus, on a sheriff's bond executed by Ryus and others. The alleged breach of the bond was that on December 26, 1877, Ryus, as sheriff of Wyandotte county, Kansas, levied a void execution upon the personal property of George Gruble and sold the same, the last article or property being sold on January 17, 1878. The defendant, in answer to the plaintiff's petition, not only set forth a justification, but also pleaded that the plaintiff's supposed cause of action did not accrue within three years next preceding the commencement of the action. The action was commenced on December 23, 1882.

The first question to be considered is, whether the plaintiff's cause of action was barred by any statute of limitations when this action was commenced. The defendant claims that the only statute of limitations which has any application to this case, is that part of § 18 of the civil code which reads as follows:

"SEC. 18. 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: . . . Third. Within two years, . . . an action for taking, detaining or injuring personal property."

The plaintiff claims that the only statute of limitations which can have any possible application to this case is the fifth subdivision of § 18 of the civil code, which reads as follows:

"Fifth. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, . . . can only be brought within five years after the cause of action shall have accrued."

The following quotation from § 18 of the civil code includes some of the other limitations provided for by statute, though probably the most of these limitations do not apply to the present case. Actions can be brought only within the following periods of time:

"First, within five years: an action upon any agreement, contract or promise in writing; second, within three years: an action upon contract, not in writing, express or implied; . . . third, within two years: an action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract and not hereinafter enumerated."

The wrongs charged in the plaintiff's petition as the foundation for his present action, are a trespass upon real property, and the taking, detaining and selling of personal property. Now an action for these wrongs is barred within two years; while the present action was not commenced until nearly five years after these wrongs were committed. In the language of the statute, an action for these wrongs "can only be brought" "within two years," "and not afterwards." The plaintiff, however, says that this is an action upon a sheriff's bond, and that an action on a sheriff's bond is not barred until five years have elapsed. This is generally true; but the language of the statute cited by the plaintiff undoubtedly means, when construed along with the other statutes and when all the statutes upon the subject of limitations are...