Southern National Bank v. Schimpeler

Opinion of the Court by Judge Turner Modifying the original opinion, and overruling the petition for rehearing. So much of the original opinion as holds that Section 2515 of the Kentucky Statutes, in so far as it applies to negotiable notes placed upon the footing of bills of exchange, is no longer in force, is withdrawn. But [814] the five-year limitation therein provided is applicable only when the note has been actually negotiated before maturity and thereby placed upon the footing of a bill of exchange and is in the hands of a third party. So long, however, as the instrument remains in the hands of the original payee, and has not been assigned or transferred to a third person, it is not upon the footing of a bill of exchange, and is controlled by our fifteen-year statute of limitation as to the principals therein, and the seven-year statute as to the sureties therein. In each of the cases of German National Bank v. Zimmer, 141 Ky., 401, and Stephens v. Gregg, 89 Ky., 461, the notes had been placed upon the footing of bills of exchange by negotiation before their maturity, and in each case their enforcement was sought by such third parties; while in this case the note has never been negotiated and is sought in this action to be enforced by the original payee therein. The distinction between them and this case is so apparent as not to call for elaboration. This view leaves in force the five-year statute as to negotiable notes placed upon the footing of bills of exchange by being negotiated before their maturity, and leaves in force the fifteen-year and the seven-year statute as to all negotiable notes in the hands of the original payee. To the extent indicated the former opinion is modified, and the petition for rehearing is overruled.