Templeton v. Sharp

• Decision Date: 03 November 1888
• Citation: 9 S.W. 507
• Parties: TEMPLETON v. SHARP et al.
• Court: Kentucky Court of Appeals

9 S.W. 507

TEMPLETON v. SHARP et al.

Court of Appeals of Kentucky.

November 3, 1888

Appeal from circuit court, Christian county.

Action by Caroline Sharp, widow, and others, children of Solomon A Sharp, deceased, against William S. Templeton, to recover on a promissory note executed by defendant to deceased Judgment for plaintiffs, and defendant appeals.

Wm. S Templeton, pro se.Landes & Clark, for appellees.

HOLT J.

This is an action upon a note purporting to have been executed by William S. Templeton to Solomon A. Sharp, in the state of California, on August 31, 1871, for $1,920, due three years thereafter, and bearing 10 per cent. interest from date.The petition was filed and summons executed within less than 15 years from the maturity of the note.When it purports to have been executed, both the maker and payee resided in California.The latter continued to do so until his death and his widow and children, whose right to bring this action is not disputed, have so resided ever since.The appellant left that state, and came to Kentucky before the maturity of the note.He has never returned, and has resided in this state ever since.The answer attempted to present two defenses; one being non est factum, and the other a plea of limitation by virtue of the California statute upon that subject.Both are defectively stated, and the general demurrer to the answer, which the lower court overruled, should have been sustained.The first paragraph avers "that said promissory note sued on by plaintiff in this action is non est factum as to defendant, it not being a legal promissory note against defendant in this action."The qualification in the latter part of it makes all of it a statement of a legal conclusion only, of the pleader.Another portion of the answer shows upon what it was based.It is also averred that owing to a spell of sickness the appellant"was in no condition to execute a legal promissory note."This is also but a conclusion; and both averments do not state facts or matter in proper form sufficient to constitute a good plea of non est factum.The second paragraph is as follows: ""Defendant also pleads in bar of this action by plaintiffsthe statute of limitation of plaintiffs' native state, California; its legally appointed time for actions on promissory notes having elapsed before the commencement of this action."The defect in this plea is that it does not aver what length of time had elapsed, or any facts to enable the court to determine from it whether a statutory bar did or did not exist.The amended answer was not curative.It added nothing material.It merely set forth in hac verba the California statute of limitation.The reply, however, cured the defect in the answer.It admits the law to be as stated, and in avoidance of it relies upon another provision of the California statute, which in substance provides that if, when the cause of action accrues against a person, he be absent from the state, it may be commenced within the time limited after his return; or if, after its accrual, he leaves the state, the time of his absence is not part of the time limited for the commencement of the action.

The question is presented, therefore, whether the California statute, which limits the time within which to bring an action upon a note to four years from its maturity, is applicable to this case, and, if so, whether by it this action is barred.Before proceeding to consider this question, it may be proper to say that the...