Smith v. Kent Oil Co.
| Decision Date | 03 August 1953 |
| Docket Number | No. 17036,17036 |
| Citation | 261 P.2d 149,128 Colo. 80 |
| Parties | SMITH v. KENT OIL CO. |
| Court | Colorado Supreme Court |
Isaac Mellman, Gerald N. Mellman, Denver, for plaintiff in error.
M. S. Ginsberg, Denver, for defendant in error.
On February 18, 1946, Kent Oil Company brought action in this state against Joe Smith on a promissory note dated January 12, 1939, and payable on or before January 12, 1940, at Salina, Kansas. Both by motion to dismiss and by answer, defendant set up the statute of limitations. Upon trial of the case, plaintiff introduced evidence only that the note had been executed and delivered by defendant; that it was held by plaintiff company and that defendant had resided at Goodland, Kansas, but 'had left there in 1942.' Thereupon defendant again moved for dismissal, which was denied, and judgment entered in favor of plaintiff.
The statute of limitations is not ground for motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b), Colo.Rules of Civil Procedure, since under Rule 8(c) that is a defense which must be set forth affirmatively by answer. Baker v. Sisk, D.C., 1 F.R.D. 232. Neither is it a basis for dismissal on motion on the ground that it appears from the complaint that the claim accrued more than six years before the commencement of the action in this state, for the reason that in the absence of an affirmative defense based on the statute such defense is waived, and the assertion or waiver of the defense can only be determined from the answer. Furthermore, even if pleaded, the running of the statute may have been tolled, and plaintiff in his complaint is not required to anticipate the defense.
The statute of limitations of any state is without extraterritorial effect, and limitations are governed by the law of the forum. Hawse v. Burgmire, 4 Colo. 313; Lamb v. Powder River Live Stock Co., 8 Cir., 132 F. 434, 65 C.C.A. 570, 67 L.R.A. 558.
'* * * the general rule is that in respect of the limitation of actions the law of the forum governs, regardless of where the cause of action arose, or of whether or not the action would be barred in the state in which it arose, and irrespective of the residence of the parties at the time the cause of action accrued.' 53 C.J.S., Limitations of Actions, § 27, page 970.
The applicable statutes of the forum appear in Chapter 102, '35 C.S.A. § 17, which provides in substance that an action shall not be maintained in this state on a claim arising in another state and barred by the laws thereof, is not here applicable for the reason that there is no plea nor proof of such bar by the laws of Kansas where this claim arose. In the absence of such showing, there is a presumption that the law of that jurisdiction is the same as the common law of Colorado, but no presumption that it is the same as our statute law. Fern v. Crandell, 79 Colo. 403, 246 P. 270; Wolf v. Burke, 18 Colo. 264, 32 P. 427, 19 L.R.A. 792; Atchison, T. & S. F. Co. v. Betts, 10 Colo. 431, 15 P. 821. Declarations in Martin v. Hazzard Powder Co., 2 Colo. 596, so far as they conflict therewith, have been overruled by the holdings in these subsequent cases.
The remaining applicable statutes are: 'Section 1, the six-year statute; Section 18, which provides that 'It shall be lawful for any person against whom an action shall be commenced in any court of this state, wherein the cause of action accrued without this state, * * * more than six years before the commencement of the action in this state, to plead the same in bar of the action in this state * * *,' and Section 27, which provides: 'If, when a cause of action accrues against a person, he is out of the state * * *, the period limited for the commencement of the action by any statute of limitations shall not begin to run until he comes into the state * * *.'
Section 18 does not provide that the fact that a cause of action accrued without the state more than six years before the commencement of the action shall ipso facto be...
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..., 105 F.3d 299, 303 (6th Cir. 1997), cert. denied , 188 S.Ct. 67, 139 L.Ed.2d 29 (1997), §§ 9:520.3, 9:530.4 Smith v. Kent Oil Co. , 128 Colo. 80, 261 P.2d 149 (1953), § 1:342 Smith v. Smith , 830 F.2d 11 (2nd Cir. 1987), § 10:720.10 Snead v. American Export—Isbrandtsen Lines. Inc. , 59 F.R......
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...barred in state in which it arose; residence of parties at time cause of action occurred is immaterial). See also Smith v. Kent Oil Co. , 128 Colo. 80, 261 P.2d 149 (1953). CONNECTICUT: No borrowing statute as of 1995. DELAWARE: Del. Code Ann. tit. 10, § 8121 (1974) (borrowing statute appli......