Kennedy v. Williams

By the Court Berry, J. This proceeding having been dismissed for failure to procure a return within the time specified by the rule, on a motion to reinstate, the defendants in error, waiving all other objections, insist that the motion should be denied on the ground, first, that a writ of error does not lie to a judgment entered on default; and second, that a motion having been made to the court below to set aside the judgment, and denied, an appeal should have been taken from the order of denial. That a writ of error does lie in such a case, has been settled in Karns v. Kunkle, 2 Minn. 313. There is nothing in the second objection. The writ of ■error in this case is sued out for the purpose of obtaining the [319] reversal of a judgment rendered below, for tbe unpaid balance of a promissory note, in an action in which Bobert Kennedy and Frances B. Kennedy, his wife, are plaintiffs. The complaint is evidently based upon the theory that the note is the property of the wife, and the husband was joined with her under Sec. 30, p. 535, Pub. Stat. See Wolfe v. Banning, 3 Minn. 206; Rusher v. Morris, 9 How. P. R. 267. But it is objected that the judgment is erroneous, because “ the complaint does not show that the demand on which it was founded was the separate property of Mrs. Kennedy.” The allegations of the complaint on this head are as follows: “ And these plaintiffs further allege that, on the 18th day of August, a. d. 1860, the aforesaid mortgage and promissory note, for a valuable consideration, were duly assigned, transferred, sold and delivered to the above plaintiff, Frances B. Kennedy, wife of the aforesaid Bobert Kennedy, and the said mortgage and promissory note have been, since such assignment and sale aforesaid, and still are the property of the said plaintiff, Frances B. Kennedy, in her sole right and possession.” We think this equivalent to saying that the note is her separate property, and sufficient. If the note “is her property in her sole right, it must be hers separately from and independent of her husband and every other person. Nininger v. Comrs. Carver County, 10 Minn. 133. It is further insisted that the complaint shows upon its face “ that the statute of limitations had closed upon ” the note before the action was commenced, and that there is no fact stated to avoid the effect of the statute. No day of payment being expressly fixed by the terms of the note, the statute of limitations commenced to run from its date, Sept. 21, 1857. Cornell v. Moulton, 3 Denio 12. The complaint bears date Sept. 20th, 1864; ’sof/w, then, it appears upon the face of the complaint, that the action was brought after the expiration of the time within which, in the language of our statute, “ actions can only be commenced ” on [320] promissory notes. By an express provision of the New York code, the defense of the statute of limitations, in order to be available, must be set up by answer. But our law contains no such provision, and, consequently, the New York authorities upon this question, since tbe code, are not applicable here. As it bas been justly remarked tbat tbe code was, to some extent, an attempt to apply tbe principles of equity pleading to actions at law, it is well to observe tbat under tbe rules of equity pleading, wben it clearly appeared upon tbe face of tbe bill tbat tbe statute of limitations bad. closed upon a right of action, advantage might be taken of that fact by demurrer, and it was not necessary to set up tbe defense in an answer. 24 Wend. 587; 3 Barb. Ch. R. 477; Story’s Eq. Pl. Secs. 484-5, 503, 571. Tbe majority of tbe court are of opinion that tbe same rule prevails under our code; tbat tbe fact tbat it appears upon tbe face ot tbe complaint, tbat tbe cause of action is barred by tbe statute, is good ground for demurrer, and for reversal of tbe judgment upon a writ of error in acase like tbis. See Howell v. Howell, 15 Wis. R. 55. But it is contended by tbe defendants in error tbat, taking tbe complaint as a whole, it does not show tbat tbe cause of action is barred, and they rely in part upon tbe allegation following: “ And these plaintiffs further say, tbat there bas been paid upon said promissory note, together with tbe amount of said mortgaged premises sold, tbe sum of four huudred and fifty-four dollars and fifty cents, etc.” Tbe time wben tbis payment was made is not stated, and we are not aware tbat we are authorized to indulge in any speculation or presumption as to wben it was in fact made. But tbe complaint shows tbat a partial payment was made at some time. For aught tbat appears, it might have been made at a date late enough to save tbe statute. It cannot, then, be said tbat tbe complaint, taken as a whole, shows upon its face tbat tbe cause of action was barred, nor tbat, for tbis reason, it fails to state facts constituting a cause of action. Judgment affirmed.