Lawrence v. Peck
South Dakota Supreme Court
Appeal from circuit court, Hanson county. Hon. D. Haney, Judge. Action by John Lawrence against H. W. Peck on a promissory note. Defendant pleaded a general denial and the statute of limitations. A motion to compel him to elect on which defense he would proceed was sustained, and defendant appeals. The facts are stated in the opinion. The acknowledgment or promise to take a debt out of the statute of limitations must be in writing.
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Appeal from circuit court, Hanson county. Hon. D. Haney, Judge. Action by John Lawrence against H. W. Peck on a promissory note. Defendant pleaded a general denial and the statute of limitations. A motion to compel him to elect on which defense he would proceed was sustained, and defendant appeals. The facts are stated in the opinion. The acknowledgment or promise to take a debt out of the statute of limitations must be in writing. Biddell v. Brizzalora, 56 Cal. 374; Kincaid v. Archibald, 73 N. Y. 192. The burden of proof is upon the plaintiff to show that the action was commenced within the…
1Opinion of the CourtKellam, J.
This was an action upon a promissory note. The complaint was in the usual form, alleging the making of the note and its nonpayment. The answer set up two* defenses: (1) A denial of “each and every allegation of the complaint;” and (2) that the cause of action did not accrue within six years before the commencement of the action. Upon the trial the plaintiff asked the court to compel the defendant to elect upon which defense he would proceed. The motion was allowed, and the defendant excepted. Having elected to stand upon the second defense the case was tried upon that issue only, resulting in…
2Cases cited7 opinions
- Willson v. CleavelandCalifornia Supreme Court · 1866
- Bruce v. . BurrNew York Court of Appeals · 1876
- Buhne v. CorbettCalifornia Supreme Court · 1872
- Stebbins v. LardnerSouth Dakota Supreme Court · 1891
- Bell v. BrownCalifornia Supreme Court · 1863
2 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Irwin v. HolbrookWashington Supreme Court · 1903
- Mt. Terry Min. Co. v. WhiteSouth Dakota Supreme Court · 1898
- Westphal v. NelsonSouth Dakota Supreme Court · 1910