Nelson v. Jorgenson

GIDEON, C. J. It is alleged in the complaint in this action that on the 15th day of October, 1914, plaintiff, Edward C. Nelson, appellant here, obtained a judgment in the district court of Salt Lake county against the defendants in the sum of $1,710, costs, and attorney’s fees. The sum of $3 was paid on that judgment on October 31, 1914. The present action was instituted in the same district court on October 16, 1922. This action is founded upon the judgment obtained in October, 1914. A demurrer was sustained to the complaint, presumably on the ground that it appeared from the face of the complaint that the cause of action was barred by the statute of limitation. That complaint was not then amended. In a minute entry made September 11, 1923, it is recited “that this case be, and the same is hereby, dismissed.” On De *362 cember 20, 1923, as appears from a minute entry, on motion of counsel for plaintiff, the court set aside and vacated its former order dismissing the case. Motion was thereupon made by plaintiff to set aside the order sustaining the demurrer to the complaint and to grant a rehearing. This motion was denied by the court on May 15, 1924. On September 9, 1924, the court, upon motion of counsel for plaintiff, made an order granting plaintiff the right to file an amended complaint. An amended complaint was filed on said 9th day of September. 0,n the 16th day of September of the same year defendants again appeared with a motion to strike from the files the amended complaint, upon the ground and for the reason that the said amended complaint was not filed in the time allowed by law, and no grounds were shown or urged why the court should exercise its discretion, and permit plaintiff to file an amended complaint a year after the demurrer was sustained to the original complaint, and for the further reason that the amended complaint did not state any cause of action or any pretended cause of action by the same plaintiff as named in the original complaint. On the same day, September 16, 1924, a demurrer was filed by the defendants to the amended complaint, and one of the grounds of demurrer was that the cause of action was barred by the provisions of the statute of limitations. On October 25, 1924, as appears from a minute entry, the demurrer of the defendant Jacob Jorgen-son was submitted without argument and overruled; and that defendant was given two days in which to answer. It does not appear that that order overruling the demurrer was afterwards spt aside or vacated. On November 15, 1924, as again appears from a minute entry, defendants’ demurrer and motion to strike came on for hearing and was argued and submitted and taken under advisement. On January 24, 1925, the defendants’ demurrer and motion to strike, as appears by a minute entry, was again considered by the court, and it was by the court ordered “that the amended complaint be, and the same is hereby, stricken from the files in the action in this case.” A formal order of dismissal was filed *363 in tbe court on tbe 5tb day of May, 1925. Tbe order appears to be of January 14, 1925, but it is attested by tbe clerk as of May 5, 1925. From tbe final order of dismissal, tbis appeal is prosecuted. Tbe legal questions argued in tbe briefs may be considered under two beads: (a) Did tbe court err in sustaining tbe demurrer to tbe original complaint upon tbe ground that it appeared from tbe face thereof that tbe cause of action was barred by tbe 8-year period of limitation? (b) Is tbe cause of action alleged in tbe amended complaint a different cause of action from that alleged in tbe original complaint, and one sought to be maintained by another and different plaintiff? We shall consider these questions in tbe order named. Tbe first day of tbe week, Sunday, is, by tbe statutes of tbis state, declared to be a holiday. Section 6465 of tbe Comp. Laws Utah 1917, being a section of chapter 4 of tbe Code of Civil Procedure, and relating to tbe periods prescribed for tbe commencement of actions other than for the recovery of real property, provides that: “An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.” —shall be commenced within eight years. By Comp. Laws Utah 1917, § 5844, it is provided that: “Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed hy law or contract to he performed upon a particular day, which day falls upon a holiday, such act may he performed upon the next business day with the same effect as if it had been performed upon the day appointed.” It is conceded that October 15, 1922, was Sunday. Tbe complaint alleged that tbe original judgment was obtained and entered in the district court of Salt Lake county on October 15, 1914. Section 5843 of Comp. Laws Utah 1917, provides that tbe time in which any act provided by law is to be done is computed by excluding tbe first day and including tbe last, unless tbe last day is a holiday, and then it is also excluded. Was the action barred by tbe foregoing provisions of our- statute on tbe 15th day of October, 1922? *364 Tbe language of tbe statute would seem to answer tbe question in tbe negative. Tbe Supreme Court of Montana bas construed a similar statute. Tbe second beadnote to- Kelly v. Independent Pub. Co., 45 Mont. 127, 122 P. 735, 38 L. R. A. (N. S.) 1160, Ann. Cas. 1913D, 1063, is as follows: “Rev. Codes, § 8067, which provides a method of computing the time in which ‘any act provided hy law’ is to he done, does not refer to acts which the law provides shall he done, but rather to acts which may he done within a specified time; and it is applicable to the computation of á period of limitation.” Tbe opinion of tbis court in Jeremy Fuel & Grain Co. v. Denver & R. G. R. Co., 59 Utah, 266, 203 P. 863, is to- tbe same effect. Some contention is made that tbe fact that tbe 15th day of October, 1922, was Sunday is not alleged in tbe original complaint, and was not called to tbe attention of tbe court. Tbe court is required to take judicial notice of tbe succeeding days of tbe weeks or months, and it is not nec- essary to allege that any particular day falls upon a holiday, when, as here, it is provided by statute that such day is a holiday. Comp. Laws Utah 1917, § 7076, subd. 8; 23 C. J. p. 172, § 2005, note 15. We are of tbe opinion, and so bold, that the filing of tbe complaint on the 16th day of October, 1922, was within tbe time prescribed by tbe sections of tbe statutes quoted for instituting an action, and that tbe trial court erred in sustaining, tbe demurrer upon the ground that tbe cause of action was barred. In tbe original complaint it is alleged in tbe body thereof that tbe plaintiff is a corporation. That allegation is omitted in tbe amended complaint. Upon that ground, as we understand counsel for respondent, it is- bis contention that a new or different plaintiff was substituted by tbe amended complaint. Tbe allegation as to tbe corporate existence of tbe plaintiff was no part of the cause of action attempted to be stated in tbe complaint. Tbe captions of tbe original complaint and amended complaint are identical. Tbe allegations in tbe body of tbe original complaint and in tbe *365 body of the amended complaint, respecting the recovery of the judgment against the defendant in October, 1914, are identical. The defendants were not, and could not be misled by the omission from the amended complaint of the allegation of corporate existence. It does not appear why that allegation was contained in the original complaint, and it was doubtless surplusage, and inserted by some inadvertence on the part of counsel drawing the complaint. The action is prosecuted in the name of an individual, and there is no allegation in either the original or the amended complaint that the plaintiff was doing business otherwise than in his own name. American Bonding Co. v. Dickey, 74 Kan. 791, 88 P. 66. The amended complaint was filed under and by virtue of an order of court permitting plaintiff to file such complaint. The mere omission of the allegation in the body of the complaint that the plaintiff was a corporation was not a substitution of a different party plaintiff, and could in no way affect plaintiff’s right to maintain the action under his amended complaint. Pugmire v. Diamond Coal & Coke Co., 26 Utah, 115, 72 P. 385; American Bonding Co. v. Dickey, 74 Kan. 791, 88 P. 66. It does not appear from the record upon what ground the trial court sustained the motion to strike the amended complaint. The court had, by order made on the 9th day of September, 1924, granted the plaintiff the right to file said amended complaint. That order does not appear to have been set aside or vacated, and for aught that appears in the record it is still in full force and effect. Had the court exercised its discretion in refusing plaintiff permission to file an amended complaint at the date the application was made for that permission, we would be called upon to decide a different question. It for some reason exercised its discretion and granted permission to file an amended complaint, and, so long as that order remained in force and effect, the court should not have stricken the amended complaint. Plaintiff, by reason of the authority granted him in that order, filed the amended complaint on the date the *366 order was made. The original order of September 11, 1923, dismissing the action, was set aside and vacated on December 20, 1923. It does not appear that that order was at any subsequent date set aside or vacated. We must conclude, therefore, that the court, in its order striking the amended complaint and dismissing the action, proceeded upon the theory that the cause of action was barred by the statute of limitations, or that the plaintiff was a person other than the plaintiff named in the original complaint. If the court proceeded upon either of these theories, it erred, as we have attempted to point out. The judgment of the district court, striking the complaint and dismissing the action is reversed, and the cause is remanded to the district court, with directions to reinstate said action; appellant to recover costs. THURMAN, FRICK, CHERRY, and STRAUP, JJ., concur.