Hook v. Bixby

The opinion of the court was delivered by Valentine, J.: This was an action on an account. It was commenced in a justice’s court, appealed to the district court, and then brought on petition in error to this court. It is uncertain what questions are really presented to us for our consideration. No case was made for the supreme court, as might have been done under the statutes enacted for that purpose; (Gen. Stat., 737; Laws of 1870, p. 169; Laws of 1871, p. 274;) and hence it would seem that the whole record should have been brought to this court. But the pleadings however are not brought to this court; the record does not purport to contain all the evidence; and while a motion was made to set aside the findings of the court below, and for a new trial, yet the record brought to this court does not show upon what ground such motion was founded, or upon what ground the new trial was asked. The trial in the court below was before the court without a jury. The court made a general finding for the plaintiff below, defendant in erroi’, and made no special findings; nor was the court asked to make special findings. The judgment was rendered in accordance with said [168] general finding. Now we cannot reverse said judgment on the ground that it is not sustained by sufficient evidence when we have not got all the evidence, and when no motion was ever made to set aside said judgment or finding on the ground that it was not sustained by sufficient evidence. 1. statute of limitations. 2. Rule of con-It is claimed' that the cause of action was barred by the statute of limitations; but the only way in which the question was raised in the court below was by a motion ma(je £0 dismiss the action. Now, if any item of the account sued on was not barred, then this motion should have been overruled. In fact, unless the plaintiff’s pleading showed affirmatively upon its face that every item of the account was barred, the motion could not be sustained. This motion was made in the district court after a trial had already been had upon the merits of the action in the justice’s court. And after the motion was overruled both parties again proceeded to a trial upon the merits of the action in the district court. But the .cause of action was not barred. Or at most, the last items thereof were not barred. The cause of action accrued, as is claimed and admitted, on February 19th, 1870, and the action was commenced on February 19th, 1873. Our code of civil procedure provides that “Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued, and not afterward; * * * Second, Within three years: An action upon contract, not in writing, express or implied.” (Gen. Stat., 633, §18.) And the same code provides that “The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” (Gen. Stat., 771, §722.) The action in the present case was founded upon an account for lumber sold. Now suppose the lumber to have been sold on any hour of the day of February 19th, 1870, and suppose the action to have accrued on the very hour that the lumber was sold. Then according to the letter of the statute of limitations the plaintiff would have had until the same hour of the day of Feb [169] ruary 19th, 1873, within which to commence his action; for the three years could not expire sooner. If, for instance, the lumber was sold at noon of February 19th, 1870, the plaintiff would'have, according to the letter of the statute, until noon of February 19th, 1873, within which to commence his action, for three years could not elapse before that time. Now as the plaintiff, in the case supposed, has a half of the first day in which to sue and a half of the last day in which to sue, the statute for the computation of time comes in and says that the time within which the plaintiff may sue shall be computed by excluding the whole of the first day and including the whole of the last. That is, he may have the whole of the last day within which to sue instead of the half or any other part of that day only. This is reasonable, and it is in accordance with the statutes, and it is probably in accordance with the weight of authority. (See 2 Parsons on Contracts, 662 to 664; Angelí on Limitations, §§42 to 50, and cases there cited.) Any other rule would shorten the statute of limitations. But in the present case although the lumber was sold on February 19th, 1870, yet it is not very clear that the debt thereby created became due on that day. Probably, however, it did. 3. Witness; competency of survivor of contracting parties. This action was on an account for lumber sold by Wm. D. Beeler & Sons to the defendants. The firm of Wm. D. Beeler & Sons was composed of Wm. D. Beeler, John S. Beeler, and William N. Bixby. There was evidence introduced tending to show the following facts, to-wit: Wm. D. Beeler died, and his interest in the assets of the . , ,. firm including said account, was sold at public sale to the plaintiff below, defendant in error. It seems to be admitted that the plaintiff is now the owner of the whole of said account, but how he became the owner of the interest of John S. Beeler is not definitely shown. Nor is it shown who sold the interest of Wm. D. Beeler, deceased. We suppose however that the sale was all regular, as no question has been raised concerning it in this court. After the foregoing evidence was introduced then one of the defendants was put [170] upon the witness stand, and it was attempted to be proved by such witness that the defendants had a settlement with said Vm, I). Beeler in his lifetime, and that according to that settlement the defendants owed only $34 on said account, instead of $172.47 as claimed by the plaintiff. The plaintiff objected to the evidence on the ground that it was incompetent under § 322 of the civil code, (Gen. Stat., 691,) and the court sustained the objection. The defendants claim that this ruling was erroneous. We are inclined to think however that the ruling was correct. Said section provides as follows: “Sec. 322. No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person; nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or communication had personally by such assignor with a deceased person in any such case; nor shall such party or assignor be competent to testify to any transaction had personally by such party or assignor with a deceased partner or joint contractor in the absence of his surviving partner or joint contractor, when such surviving partner or joint contractor is an adverse party.” * * * . The construction given to said section by the court below certainly comes within the spirit of said section, and we are inclined to think that it also comes within the letter of the section. Of course, a different construction might be given to said section, for it is manifestly ambiguous in two or three respects, but the true construction is, we think, the one given it by the court below. The third point made in the brief of counsel for plaintiffs in error is not presented by the record brought to this court. The remarks we made at the beginning of this opinion will apply to that point and will be a sufficient discussion thereof. Judgment affirmed. All the' Justices concurring.