Searls v. Knapp

• Decision Date: 26 April 1894
• Citation: 5 S.D. 325,58 N.W. 807
• Parties: SEARLS, Plaintiff and appellant, v. KNAPP et al. Defendants and respondents.
• Court: South Dakota Supreme Court

5 S.D. 325, 58 N.W. 807 (1894)

SEARLS,

Plaintiff and appellant,

v.KNAPP et al.

Defendants and respondents.

South Dakota Supreme Court

Appeal from Minnehaha County Court, S.D.

Hon. E. Parliman, Judge

Affirmed

Joe Kirby, Sioux Falls, S.D.

Attorneys for appellant.

E. S. Johnson

Attorneys for respondent.

Opinion filed April 26, 1894

FULLER, J.

The plaintiff brought suit upon two promissory notes of even date, which, according to the recitals of each, became due November 1, 1884, and November 1, 1885, respectively. The defendants admit the execution and delivery of the notes, and plead the statute of limitations by way of answer and in bar of the action. At the trial the notes were offered and received in evidence without objection, and the plaintiff rested his case Upon motion of counsel for respondents, the court directed a verdict in favor of the defendants, for the reason that the notes in evidence upon their face showed that the action is barred by the statute of limitations. From a judgment entered thereon, and from an order denying a new trial, plaintiff appeals.

Counsel for appellant urges that the statute of limitations is not sufficiently pleaded to be available as a defense. The allegation contained in the answer is as follows: “(2) Alleges that the cause of action therein set forth did not accrue within six years from the commenement of this action.” We not think the position is well taken. The averment is sufficient to apprise the plaintiff that the defendants relied upon the statute of limitations as a defense to the action, and upon proof of the fact alleged therein the burden would rest upon plaintiff to show something which would prevent the running of the statute, or relieve him from its operation. Matw. Code Pl. 478; Baylies Code Pl. 252. It is further contended that there was nothing before the court to prove that six years had elapsed when the summons was served, and that the court erred in directing a verdict for defendants. According to the terms of the. notes upon which this suit was based, the one which last matured became due on the 1st day of November, 1885. These notes, being introduced, were before the court, and their recitals are prima facie evidence of the time when each matured. It is well settled that when the judgment of a trial court is assailed on appeal, and the question of its validity must be settled by the adoption of a presumption, an appellate court will entertain a presumption in favor of such judgment, instead of one that will...