McConnell v. Spicker
South Dakota Supreme Court
Appeal from circuit court, Roberts county. Ho.n. A. W. Campbell, Judge. Action by S. R. McConnell and .another against F. T. Spicker. From, an order sustaining a demurrer to defendant’s answer, he appeals. The facts are stated in the opinion. Averment that cause of action set forth in the complaint did not accrue within six years of the commencement of this action suL ficiently pleads the statute.
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Appeal from circuit court, Roberts county. Ho.n. A. W. Campbell, Judge. Action by S. R. McConnell and .another against F. T. Spicker. From, an order sustaining a demurrer to defendant’s answer, he appeals. The facts are stated in the opinion. Averment that cause of action set forth in the complaint did not accrue within six years of the commencement of this action suL ficiently pleads the statute. Searles v. Knapp et al.,- 5 S. D. 327. The statute contemplates a departure from the-state (Comp. Laws, 4859) during this time the statute- does not run, -but there is nothing in the statute that…
1Opinion of the CourtFuller, P. J.
Answering the complaint in this action on ,a promissory note, the defendant, omitting formal parts, “alleges that the cause of action contained in plaintiffs’ complaint did not accrue within six years before the commencement of this action.” Whether the court was justified in sustaining a demurrer to such answer is practically the only question essential to a determination of this appeal. The defense being a personal privilege, which is waived unless property asserted, the party in.favor of whom our statute of lim*100itations has run must plead it by way of answer in order to secure the immunity…
2Cases cited12 opinions
- Townsend v. JemisonSupreme Court of the United States · 1850
- Olcott v. . the Tioga Railroad CompanyNew York Court of Appeals · 1859
- Mason, Chapin & Co. v. Union Mills Paper Manufacturing Co.Court of Appeals of Maryland · 1895
- Searls v. KnappSouth Dakota Supreme Court · 1894
- State ex rel. Matney v. SpencerSupreme Court of Missouri · 1883
7 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Durr v. HardestySouth Dakota Supreme Court · 1956
- Merchants & Planters National Bank of Sherman v. AppleyardSupreme Court of North Carolina · 1953
- State ex rel. Berge v. PattersonSouth Dakota Supreme Court · 1904
- Dawson v. Fidelity and Deposit Company of MarylandDistrict Court, D. South Dakota · 1961
- Raymond v. BarnardSouth Dakota Supreme Court · 1947
5 more not listed; retrieve them via the Exa API.