Wooster v. Scorse

• Decision Date: 14 May 1914
• Docket Number: Civil 1375
• Citation: 140 P. 819,16 Ariz. 11
• Parties: WILL WOOSTER. Appellant, v. WILLIAM SCORSE, Appellee
• Court: Arizona Supreme Court

140 P. 819

16 Ariz. 11

WILL WOOSTER. Appellant, v. WILLIAM SCORSE, Appellee

Civil No. 1375

Supreme Court of Arizona

May 14, 1914

APPEAL from a judgment of the Superior Court of the County of Navajo. Frank O. Smith, Judge. Affirmed.

The facts are stated in the opinion.

Mr Thorwald Larson, for Appellant.

Mr Isaac Barth, for Appellee.

OPINION

FRANKLIN, C. J.

On the eighteenth day of August, 1905, at Navajo county, Arizona the defendant and appellant made and delivered to the plaintiff and appellee his promissory note for the sum of $1,000, payable one year from date, with annual interest at ten per cent, and secured the same by mortgage on certain lots in the town of Holbrook, Arizona. The debt not having been paid, this action to foreclose the mortgage was begun on the fourteenth day of December, 1910.

The case was tried to the court without a jury, and the court, having made and filed its findings of fact and conclusions of law, rendered judgment for the plaintiff, with a foreclosure of the mortgage.

The defendant interposed the statute of limitations both by demurrer and as an affirmative defense in the answer; the plea of the statute of limitations being based on the provisions of paragraph 2954 of the Revised Statutes of Arizona, providing that actions for debt, where the indebtedness is evidenced by or founded upon any contract in writing, executed within this territory, shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward. The indebtedness is not denied.

By way of reply and in avoidance of the bar of the statute, as being an acknowledgment of the justness of the claim in suit, the plaintiff pleaded in haec verba a writing signed by defendant, and dated February 13, 1909. The plaintiff further alleged that at divers and sundry times and places after said debt became due defendant acknowledged the justness of plaintiff's claim in writing signed by defendant. It was not sought to make this allegation more definite and certain in particulars, nor was the plaintiff's said reply otherwise assailed.

The appellant has, with much care and evidence of research elaborated in his brief in what manner and at what time and under what circumstances a relief from the bar of the statute of limitations should be pleaded, involving, as it does, the character and kind of acknowledgment, whether made before or after the bar is complete, and whether general or conditional.

In fine, whether the action is properly upon the original obligation as continuing by reason of the acknowledgment, or is properly upon the substituted promise. But, upon the record made by the appellant in the lower court, and as here presented, we think he is not in a position to urge such matters for our consideration.

As we consider the question of the statute of limitations decisive of this appeal, we must confine ourselves to this question of the statute of limitations as presented by the record. The transcript of the reporter's notes is short. We quote the material part:

"The Court: Let the record show this case is caled for trial at this time.

"Mr. Barth: By agreement of counsel, we are going to introduce into evidence the original note, the original mortgage, and the letter which is on file, and, in addition thereto, a letter written on the 31st.

"The Court: All admitted, and same to be marked, 'A,' 'B,' and 'C.'

"Mr. Barth: That will be all of the plaintiff's case.

"Mr. Barth introduces another letter to which Mr. Larson objects, asking that it be held for identification pending Mr. Wooster's arrival.

"Argument by Mr. Larson.

"The Court: This case is for trial at this time upon the complaint, second amended answer, and reply, joined upon these issues.

"Mr. Larson: I think I will agree that that letter may go in as evidence in order to save time. I should prefer to have Mr. Wooster examine it, but I will agree to have it admitted.

"The Court: Letter will be admitted and marked 'D.'

"Mr. Barth: That is our case.

"The Court: Let the record show that plaintiff rests.

"Defendant offers no evidence.

"Mr. Larson: Then we submit the case to the court."

From the evidence the court, among others, made this finding: "The said note would have become barred by the statute of limitations on the eighteenth day of August, 1910, and that during the year 1909, and prior to the said eighteenth day of August, 1910, the defendant, in a writing and in writings signed by the said defendant, duly acknowledged the justness of the claim of the said plaintiff, upon which this action is based."

It will be noticed from the foregoing that, in addition to the note and mortgage, three letters were introduced in evidence and marked as exhibits. The introduction of these letters was not objected to, but the letters were received in evidence by the express agreement of the defendant. Pursuant to paragraph 1256, Revised Statutes of Arizona of 1913, the appellant filed a notice with the clerk of the superior court specifying the papers or portions of the record which he desired necessary to present the question involved on such appeal. There were three letters introduced and marked as exhibits in the case, but appellant's notice specified only one, to wit, Letter of Will Wooster to William Scorse, dated January 31, 1910, and this letter is the only one presented in the record. This letter reads as follows:

"Holbrook Arizona, Jan. 31, 1910.

"Wm. Scorse, Taylor, Ariz.

"Dear Sir: Answering yours 5th, I want to see you and have an understanding with you about an extension of time. I am not going to...