Skelton v. Banks' Estate
| Decision Date | 16 November 1945 |
| Docket Number | No. 17389.,17389. |
| Citation | 63 N.E.2d 546,116 Ind.App. 280 |
| Parties | SKELTON v. BANKS' ESTATE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Spencer Circuit Court; George T. Wandel, Judge.
Action by Mellie Mae Mosby Skelton against the estate of Olive Thurman Mosby Banks, deceased, Everett Banks, executor, for nursing services. From an adverse judgment, plaintiff appeals.
Affirmed.
Thomas W. Lindsay, of Evansville, for appellant.
Louis N. Savage and Paul F. Mason, both of Rockport, for appellee.
On June 10, 1943 appellant filed her claim against appellee for nursing services rendered to the husband of appellee's decedent from the 15th day of March, 1934 to the 1st day of September, 1934. To appellant's amended complaint appellee filed answer in four paragraphs: (1) An answer of admission and denial under the rule; (2) pleading the six-year statute of limitations; (3) that the promise of appellee's decedent was without consideration; (4) plea of payment. Appellant replied to the second paragraph alleging a promise to pay the debt by appellee's decedent which, it is averred, tolled the statute of limitations.
The cause was submitted for trial to the court without the intervention of a jury. At the conclusion of the trial the court found for appellee and rendered judgment against appellant for costs.
The only error assigned here is that the trial court erred in overruling appellant's motion for a new trial. This being an appeal from a negative judgment, the only specification in the motion for a new trial which presents a question is that the finding of the court is contrary to law. Wadler v. Mogul Rubber Corporation et al., Ind.App.1945, 61 N.E.2d 472, and authorities there cited.
Because of the conclusion we have reached, we deem it necessary to consider only the contention of the parties in reference to the statute of limitations.
It is provided by statute, § 2-610, Burns' 1933, sec. 69, Baldwin's 1934, as follows: ‘No acknowledgment or promise shall be evidence of a new or continuing contract, whereby to take the case out of the operation of the provisions of this act, unless the same be contained in some writing signed by the party to be charged thereby.’
Appellant contends this provision of the statute applies only to cases where the statute has barred the debt before the promise was made. In support of this contention she asserts the Supreme Court, in Kisler v. Sanders, Administratrix, 1872, 40 Ind. 78, read into the above provision the words ‘after the statute has fully run or after the debt has been barred.’ An examination of that case will disclose it does not sustain appellant's contention. The Supreme Court there held that where it was not alleged in a pleading that the promise was in writing, such pleading did not state a defense to the statute of limitations. In summarizing its conception of the above provision of the law, it was said: ‘No acknowledgment of, or promise to pay, a debt barred by the statute of limitations is...
To continue reading
Request your trial