Seymour v. Pittsburgh

CourtUnited States State Supreme Court of Ohio
Writing for the CourtJOHNSON
Citation4 N.E. 236,44 Ohio St. 12
Decision Date26 January 1886
PartiesSEYMOUR v. PITTSBURGH, C. & ST. L. RY. CO.

44 Ohio St. 12
4 N.E. 236

SEYMOUR
v.
PITTSBURGH, C. & ST. L. RY.
CO.

Supreme Court of Ohio.

Filed January 26, 1886.


Error to district court, Licking county. The facts are stated in the opinion.


[Ohio St. 13]Chas. A. Montgomery, for plaintiff in error.

[Ohio St. 14]

[4 N.E. 237]

J. Dunbar, for defendant in error.


JOHNSON, J.

This is an action brought under the statute as amended April 18, 1874, (71 Ohio L. 83,) for the recovery of damages for the killing of domestic animals by reason of the want and insufficiency of fence and cattle-guards along the line of defendant's railroad. The defendant demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, and final judgment rendered against the plaintiff.

The question before the court below was whether the limitation of four or six years barred the action; and, also, whether the demurrer was the proper way to raise the question. The plaintiff contends that the only proper way to plead the statute of limitations is by demurrer, specially stating that the statute is a bar, or by answer.

1. There is another question which does not appear to have been made in the court of common pleas, which is assigned for error here. It is said that this demurrer was filed out of rules, and without leave of court, and therefore [Ohio St. 15]should not be used to raise the question of the statute of limitations, because the plea of such statute is unconscionable, and should not be pleaded after default. This demurrer was filed November 13, 1879, and was heard October 27, 1881, nearly two years thereafter. No objection was interposed during all this time by the plaintiff, though it appears that the issue presented was on the latter day ‘argued by counsel,’ when the demurrer was adjudged well taken and final judgment rendered. Had the point been presented to the court on a motion to strike out the objectionable pleading, as being filed out of rules and not with leave, and the court had overruled that motion, error might have been assigned to that ruling if it was erroneous. But no objection was then made, and, as the parties argued and submitted the case upon the demurrer, it is too late now to object, after final judgment, that the demurrer was not filed within rules. The point was not made in the court below, so far as appears by the record, and therefore is not assignable as error.

2. It is claimed that, in order that the plaintiff should have the benefit of the statute of limitations, he should insist upon it as a bar in his answer or as a specific ground of demurrer.

McKinney v. McKinney, 8 Ohio St. 423, is relied on to support this position. That was an action to recover real property, and for damages for being kept out of possession. The petition was for damages and for 19 years' rent. The defendant answered without claiming the benefit of the statute in his answer, or by demurrer. In the opinion, SWAN, C. J., says:

‘We have already held, at the present term of this court, that, where the petition on its face discloses that the cause of action is barred, the defendant may, by demurrer, specify that the petition shows a cause of action barred by the statute.’

The court then holds that, as the defendant had answered denying the allegations of the petition, he could not, on the trial, insist on the bar of the statute, and that, in order to avail himself of that defense, he should

[4 N.E. 238]

have set it up in his answer, or rely on it as specific ground of demurrer.

[Ohio St. 16]The case to which Judge SWAN refers, as ‘decided at the same term,’ is Sturges v. Burton, 8 Ohio St. 215. The third syllabus reads:

‘Where it appears on the face of the petition that the cause of action accrued at such a period that under the statute of limitations no action can be brought, the...

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11 practice notes
  • Blake v. Rupe, Nos. 5576
    • United States
    • United States State Supreme Court of Wyoming
    • September 14, 1982
    ...to and subsequently set aside. Parker v. Haight, 14 Ohio Cir.Ct. 548; Newsom's Adm'r v. Ran, 18 Ohio 240; Seymour v. Railway Co., 44 Ohio St. 12, 4 N.E. 236; Lyons v. Fidelity Lodge, 2 Wkly. Law Bul. (Ohio) 97; Hengehold v. Gardner, 4 Wkly. Law Bul. (Ohio) 958; Carver v. Williams, 6 Wkly.La......
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...may be raised by a general demurrer. Cowhick v. Shingle, 5 Wyo. 87; Columbia Savings and Loan Assn. v. Clause, 13 Wyo. 166, 78 P. 708; 44 Ohio St. 12, 4 N.E. 236. Plaintiffs are not entitled to relief because of their own laches. Holt v. City of Cheyenne, 22 Wyo. 212; Crowell v. City of Che......
  • Hocking Valley R. Co. v. New York Coal Co., 2453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 6, 1914
    ...does not apply, if the action is upon 'a liability created by statute other than a forfeiture or penalty. ' Seymour v. Railway Co., 44 Ohio St. 12, 17, 18, 4 N.E. 236. Under section 11222 a liability created by statute is 'a liability which would not exist but for the statute. ' Hawkins v. ......
  • Citizens Banking & Sav. Co. v. Spitzer, Rorick & Co.
    • United States
    • United States Court of Appeals (Ohio)
    • July 15, 1938
    ...by Section 11222, General Code. Supporting this proposition the following cases are cited: Seymour v. Pittsburgh, C. & St. L. Ry. Co., 44 Ohio St. 12, 4 N.E. 236;Hocking Valley Ry. Co. v. New York Coal Co., 6 Cir., 217 F. 727;Fidelity & Deposit Co. v. Lindholm, 9 Cir., 66 F.2d 56, 89 A.L.R.......
  • Request a trial to view additional results
11 cases
  • Blake v. Rupe, Nos. 5576
    • United States
    • United States State Supreme Court of Wyoming
    • September 14, 1982
    ...to and subsequently set aside. Parker v. Haight, 14 Ohio Cir.Ct. 548; Newsom's Adm'r v. Ran, 18 Ohio 240; Seymour v. Railway Co., 44 Ohio St. 12, 4 N.E. 236; Lyons v. Fidelity Lodge, 2 Wkly. Law Bul. (Ohio) 97; Hengehold v. Gardner, 4 Wkly. Law Bul. (Ohio) 958; Carver v. Williams, 6 Wkly.La......
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...may be raised by a general demurrer. Cowhick v. Shingle, 5 Wyo. 87; Columbia Savings and Loan Assn. v. Clause, 13 Wyo. 166, 78 P. 708; 44 Ohio St. 12, 4 N.E. 236. Plaintiffs are not entitled to relief because of their own laches. Holt v. City of Cheyenne, 22 Wyo. 212; Crowell v. City of Che......
  • Hocking Valley R. Co. v. New York Coal Co., 2453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 6, 1914
    ...does not apply, if the action is upon 'a liability created by statute other than a forfeiture or penalty. ' Seymour v. Railway Co., 44 Ohio St. 12, 17, 18, 4 N.E. 236. Under section 11222 a liability created by statute is 'a liability which would not exist but for the statute. ' Hawkins v. ......
  • Citizens Banking & Sav. Co. v. Spitzer, Rorick & Co.
    • United States
    • United States Court of Appeals (Ohio)
    • July 15, 1938
    ...by Section 11222, General Code. Supporting this proposition the following cases are cited: Seymour v. Pittsburgh, C. & St. L. Ry. Co., 44 Ohio St. 12, 4 N.E. 236;Hocking Valley Ry. Co. v. New York Coal Co., 6 Cir., 217 F. 727;Fidelity & Deposit Co. v. Lindholm, 9 Cir., 66 F.2d 56, 89 A.L.R.......
  • Request a trial to view additional results

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