Hood v. Seachrest

BENSON, J. — 1. There is but one point in the demurrer which possesses any merit, and that is the con [461] tention that the statute of limitations has run against plaintiff’s cause of action, and this is the only question which we deem it necessary to consider. In doing so, it may be remarked that in the investigation of this subject we have received no assistance whatever from the brief of either party. It is conceded that Section 8, L. O. L., fixes two years as the time within which actions of this character must be begun, and the complaint discloses that the false representations are charged to have been made in March, 19Í0, and that this proceeding was not begun until February, 1917. Plaintiff contends that in actions for fraud and deceit the statute of limitations does not begin to run until the injured party discovers the falsity of the representations, or could have done so by the use of due diligence. While this position is uniformly held to be correct as regards suits in equity, there is much conflict in the authorities as to its application in actions at law. There is much variety in the phraseology of the several statutes, and still greater variety in the reasoning of the courts in reaching their contrary conclusions. In many of the states the interpretation of the law which is urged by plaintiff has been expressly adopted by statute. In many others it has been held, in the absence of a statutory provision to the contrary, that the limitation of time begins to run as soon as the right of action accrues, and that this occurs when the injured party acts upon the fraudulent representations. Our own statute reads as follows: “Actions at law shall only be commenced within the periods prescribed in this title, after the cause of action shall have accrued; except where, in special cases, a different limitation is prescribed by statute. But the objection that the action was not commenced within the [462] time limited, shall only be taken by answer, except as otherwise provided in Section 68”: Section 3, L. O. L. This section is followed by the various time limits, and then by the exceptions, of persons under disability such as minors, insane persons, those imprisoned on criminal charges, etc., but no mention is made of cases involving fraud and deceit. This legislation was enacted as a part of the Civil Code in 1862, and as a part of the same act, we find Section 391, L. 0. L., which reads, in part, as follows: “A suit shall only be commenced within the time limited to commence an action as provided in Chapter II of Title I of this Code; * . In a suit upon a new promise, fraud, or mistake, the limitation shall only be deemed to commence from the making of the new promise or the discovery of the fraud or mistake.” When we read these two sections together, it is obvious that the legislature intended that the rule adopted in law actions is to differ from the one followed in suits in equity. It will also be observed that while exceptions to the general effect of Section 3, L. 0. L. were considered by the legislature, the Code is silent as to any exception in the case of fraud and deceit. This also is a convincing fact in the discussion. In Swickard v. Bailey, 3 Kan. 507, 513, the court, in discussing this question, says: “This action shows conclusively that the legislative mind was directed to the subject we are considering. The provision is not as broad as in the judgment of many it should be, but the fact that any exception at all was made, is strong evidence that no other or greater one was intended. At all events, according to the most familiar of the canons of interpretation, the court is bound to say, that having mentioned one exception, all others were intended by the legislature to be excluded.” [463] We conclude, then, that in the present case, the plea of the statute of limitations was well taken, and the demurrer properly sustained. The judgment is affirmed. Apeirmed. Burnett, Harris and Johns, JJ., concur.