Steeley v. Funkhouser

• Decision Date: 30 September 1969
• Docket Number: No. C,879,C
• Citation: 169 S.E.2d 701,153 W.Va. 423
• Court: West Virginia Supreme Court
• Parties: Roy S. STEELEY, as Executor of the Estate of Dolores F. Steeley, Deceased et al., v. Justin FUNKHOUSER.

Page 701

169 S.E.2d 701

153 W.Va. 423

Roy S. STEELEY, as Executor of the Estate of Dolores F Steeley, Deceased et al., v. Justin FUNKHOUSER.

No. CC, 879.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1969.

Decided Sept. 30, 1969.

Syllabus by the Court

1. A question pertaining to the ruling of a circuit court upon a motion made in a civil action, pursuant to Rule 12(b) of the West Virginia Rules of Civil Procedure, to dismiss the complaint for failure to state a claim upon which relief may be granted may be certified to this Court pursuant to the provisions of Code, 1931, 58--5--2, as amended.

2. The general rule is that a statute of limitations commences to run on a cause of action when the right to institute an action thereon accrues.

3. A promissory note payable on demand becomes due and payable on the date of its execution and delivery and the statute of limitations commences to run on that date.

4. By reason of Rule 3 of the West Virginia Rules of Civil Procedure, a civil action is commenced by filing a complaint with the court and the issuance of a summons or the entry of an order of publication.

5. By reason of the provisions of Code, 1931, 2--2--4, the general rule is that the word 'year' when used in a statute is construed to mean a calendar year.

6. Where a note payable on demand was dated and delivered on March 12, 1959, the period of the statute of limitations applicable to an action to recover judgment thereon shall be computed by excluding the day upon which the note was dated and delivered; and a civil action commenced for that purpose on March 12, 1969, is timely and is not barred by the applicable ten-year statute of limitations.

F. Dean Nichols, John C. Skinner, Jr., Charles Town, for plaintiffs.

Kenneth W. Metz, K. Paul Davis, Charles Town, for defendant.

CALHOUN, Judge:

This certified case involves a civil action instituted in the Circuit Court of Jefferson County on March 12, 1969, by Roy S. Steeley, Executor of the estate of Dolores F. Steeley, deceased, Avis F. Pritchard, Jacqueline F. Senutovitch and Geraldine F. Lombard, as plaintiffs, against Justin Funkhouser, as defendant, to recover judgment in the amount of $16,127.16 on two demand notes executed and delivered by the defendant on March 12, 1959. The defendant filed a motion to dismiss, pursuant to R.C.P. 12(b), for failure of the complaint to state a claim upon which relief may be granted on the ground that the complaint discloses that the claim was barred by Code, 1931, 55--2--6, the applicable statute of limitations which, so far as pertinent to this case, is as follows:

'Every action to recover money, * * * shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: * * * if it be upon * * * a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; * * *.'

In overruling the motion to dismiss, the trial court held that the cause of action stated in the complaint was not barred by limitations. Upon a joint motion of the parties, the court, pursuant to the provisions of Code, 1931, 58--5--2, as amended, certified to this Court for decision the following question:

'Where there is no dispute that the applicable statute of limitations under West Virginia Code 55--2--6 is ten years and the instruments sought to be recovered on are negotiable 'demand notes' made, dated and delivered on March 12, 1959, is an action on said notes timely commenced on March 12, 1969, or does the action have to be commenced on March 11, 1969, to prevent a defendant from successfully maintaining the affirmative defense of the ten year statute of limitations on said notes?'

It is not questioned that the case is properly certifiable under the provisions of Code, 1931, Code 58--5--2, as amended. Halltown Paperboard Company v. C. L. Robinson Corporation, 150 W.Va. 624, 148 S.E.2d 721.

Code, 55--2--6, the statute of limitations previously referred to, provides that the action shall be brought within ten years 'next after the right to bring the same shall have accrued, * * *.' This Court has consistently held that the running of a statute of limitations commences when the right to sue accrues. Sansom v. Sansom, 148 W.Va. 603, 607, 137 S.E.2d 1, 4. This is in accord with the general rule. 54 C.J.S. Limitations of Actions § 108, p. 9; 34 Am.Jur., Limitation of Actions, Section 113, page 91. It becomes material, therefore, to determine when the cause of action arose in this case.

The following general rule is stated in the eighth point of the syllabus of Lightner v. Lightner, 146 W.Va. 1024, 124 S.E.2d 355: 'A promissory note payable on demand becomes due and payable upon its delivery and the statute of limitations begins to run upon such instrument from the date of its execution * * *.' To the same effect, see Maslin's Exr's v. Hiett, 37 W.Va. 15, 20, 16 S.E. 437, 438; Laidley v. Smith, 32 W.Va. 387, 390, 9 S.E. 209, 211; Whitehurst v. Duffy, 181 Va. 637, 644, 26 S.E.2d 101, 105; Bacon's Adm'r v. Bacon's Trustees, 94 Va. 686, 687, 27 S.E. 576, 577; 54 C.J.S. Limitations of Actions § 147b, p. 80; 34 Am.Jur., Limitation of Actions, Section 147, page 118; 11 Am.Jur.2d, Bills and Notes, Section 286, page 311; Annot., 71 A.L.R.2d, Section 3, page 290. The general rule that a cause of action against the maker of a demand note arises upon its date is embodied in the Uniform Commercial Code adopted in this state in 1963. Code, 1931, 46--3--122, as amended. It is clear that the plaintiffs' cause of action arose on March 12, 1959, the date of the demand notes, and that the applicable statute of limitations commenced to run on that date.

It is not disputed that the civil action on the two demand notes was commenced on March 12, 1969, pursuant to Rule 3 of the West Virginia Rules of Civil Procedure which is as follows: 'A civil action is commenced by filing a complaint with the court and the issuance of a summons or the entry of an order of publication.' This rule supersedes the former rule relating to civil suits and actions and the rule relating to proceedings by notice of motion for judgment. Sansom v. Sansom, 148 W.Va. 603, 607--608, 137 S.E.2d 1, 4; State ex rel. Smith v. Bosworth, 145 W.Va. 753, 763--764, 117 S.E.2d 610, 617.

Having determined that the cause of action arose and that the ten-year period of limitations commenced to run on March 12, 1959, the date of the two demand notes, and that the civil action to recover judgment on the notes was commenced on March 12, 1969, we must determine how the ten-year period must be computed. This represents the point of disagreement between counsel for the respective parties and the gist of the question certified to this Court for decision.

The trial court, in holding that the institution of the action on March 12, 1969, was timely and that, therefore, the cause of action was not barred, sustained the contention of the plaintiff that a decision of the question certified is properly governed and controlled by the provisions of Code, 1931, 2--2--3, which is as follows:

'The time within which an act is to be done shall be computed by excluding the first day and including the last; or if the last be Sunday, it shall also be excluded; But this provision shall not be deemed to change any rule of law applicable to bills of exchange, or negotiable notes.' (Italics supplied.)

'Even in the absence of specific statutory provision, the overwhelming weight of authority supports the general rule that in the computation of time prescribed by a statute of limitations, the first day or the day upon which the cause of action accrued is to be excluded.' Annot., 20 A.L.R.2d, Section 2, page 1250. To the same effect, see 86 C.J.S. Time § 13(1), p. 848; Eastern Oil Co. v. Coulehan, 65 W.Va. 531, 538--539, 64 S.E. 836, 839; State v. Beasley, 21 W.Va. 777, 780. This general rule for computation of time in statutes of limitations is sometimes based on the principle that the law disregards fractions of a day in the computation of time. Annot., 20 A.L.R.2d, Section 2, page 1253. See also 86 C.J.S. Time § 16, p. 900; Horner v. Huffman, 52 W.Va. 40, 46,...