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90 Neb. 274

Scott v. DeGraw

Nebraska Supreme Court

Decided November 14, 1911

Nebraska Supreme Court · decided 1911-11-14

<p>1. Limitation of Actions: Pleading and Proof. 'In this state the statute of limitations^ is a statute of repose; it prevents recovery-on stale demands. If the petition in an action upon a promissory note sets out the note which shows upon its face that it is barred by the statute, and partial payments are also alleged in the petition which wpuld remove the bar of the statute, and such payments are denied in the answer, with the allegation that the note is barred, the plaintiff cannot recover without evidence of such payments.</p> <p>2.-: Notes: Payments on Collaterals. When collaterals are transferred by the maker of a note as security therefor, payment on such collaterals will be considered as payment on the principal note by the maker thereof, in the absence of any agreement to the contrary, as of the time that such payments were actually made upon the collaterals, and not of the time that they may have been received by the holder of the principal note from one in whose hands he has placed the collaterals for collection.</p> <p>3. -: Evidence. The evidence in this case fails to prove that any payment was made upon the note in suit within the five years next before the action was begun.</p>

Cited by 3 later decisions — most recently May 1947

3 state decisions

Relies on Pinkham v. Pinkham · Scroggin v. National Lumber Co. · O'Connor v. Ætna Life Insurance

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1911-11-14

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Button, J.,

¶1concurring in conclusion.

¶2The petition pleads the note and credits thereon, which on the face of the pleading show that the action was not barred. All that-is said in the answer with reference to the statute of limitations is as follows: “Nor did he ever hear from said Harper or the plaintiff, until long after the .statute of limitations had run against said note, that any balance was claimed to be due thereon; that, if any of the notes so transferred to said Harper were not paid and paid promptly, it was the fault of said Harper, and not by reason of any extension granted or permitted by this defendant, and any pretended claim of any balance due thereon would be and is barred by the statute of limitations.” The general, rule is that a plea of the statute, which merely avers the pleader’s conclusion of law is bad. 13 Ency. Pl. & Pr. 214. This is the rule that has been adopted by this court in every case that has been presented to it before the present one. Scroggin v. National Lumber Co., 41 Neb. 195; Dufrene v. Anderson, 67 Neb. 130; Pinkham v. Pinkham, 61 Neb. 336. It seems to me the opinion as it now stands is directly opposed to these authorities, and overrules them without saying so.

¶3I am inclined to think, however, that the case should be reversed on the other points mentioned in the opinion.

Root, J., concurs in the opinion of Letton, J.
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