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cannot be an.
the only method for supplying the “ There is no reason why a party
Gammon v. knudson 46-45):5. should be harassed by suit after suit Prior to the enactment of this sec. when one judgment can be made just tion, held, that an action might be as effective as a hundred : Code maintained on a domestic judgment Com'rs' Rep., p. 74. while in full fore and upon which The restriction here imposed is ab executior might issue, in the ab- not applicable to actions in the U. S. sence of any legislative restriction: circuit court: Phillips v. O'Brien Co.,2 Thompson v. County of Lee, 22-206 ; Dillon (U. S. C. C.), 513. Simpson v. Cochran 23-81.
Sec 2522. Judginent obtained in an action by ordinary pro. Judgments ceedings, shall not be annulled or modified by any order in an nulled by equit. actioc by equitable proceedings, except for a defense which has able proceedariser or beer discovered since the judgment was rendered. But R. ( 2621. such judgment does not prevent the recovery of any claim, though such claiir might have been used by way of counter claim it the actior. or which the judgment was recovered.
This does not prevent the issuance Where a defendant permits judgof an injunction against the collec- ment to go against him by default on tior of a judgment which is being a legal demand, he may in a subseenforced contrary to thagreement of quent action set up and rely upon pariine: Baker r Redd, 44-179. equitable matters wbich would have
Jurig ment in varnishment proceed- constituted an available defense in ings althougb rendered for an the first action ; and semble, that the amount in excess of garnishee's lia- same would be true where the claim bilits to judgment debtor, cannot be available as a defense is a legal one: modised in an action in equity: B. Fairfield v. McNany, 37-75. & V. E. R Co. 0. Hall, 37-620.
SEC 2523 No action to obtain a discovery shall be brought, For discovery excep: that where any person or corporation is liable, either R. & 4127. jointly of severally with others by the same contract, an action may be brought against any parties who are liable, to obtain discovery of the names and residences of the others who are liable. In such action, the plaintiff shall state in his petition, in effect, that he has used due diligence, without success, to obtain the information asked to be discovered, and that be does not believe the parties to the contract who are known to him have property sufficient to satisfy his claim. The petition shall be verified, and the cost of such action shall be paid by the plaintiff, unless the discovery be resisted. Sec. 2324. Successive actions may be maintained
the same contract or transaction, whenever, after the former action, a tions. new cause of action has arisen therefrom. Saction referred to in Richmond v. 1 D. & S. C. R. Co., 33–422.
Sec. 2525. All causes of actions shall survive, and may be Actions surbrought, notwithstanding the death of the person entitled or liable vive
R. 423467, 4110
9 G. A. ch. 174, Held, that an action for libel would. If a counter claim is properly main- i 4. survive: Carson v. McFadden, 10- tainable in favor of two defendants, 91; so also an action for injury to the the death of one of thein will work no
McKinlay v. McGregor, abatement thereof: Moorehead v. 10-111; so also an action for seduc- Hyıle. 38–382. tion brought under $ 2555: Shafer A claim based upon a personal tort 0. Grimes, 2:3-550.
may be assigned: Weir: 1. Ci'y of But an action for divorce is abated Darenport, 11-19: Gray v. McAllis er, by the dath of one of the parties, and 50–491. with it all claim for alimony: Barney As to survival of actions pending
Burney, 14–189; O'Hagan i. upon appeal, see notes to $:211. O'Hagan, 4–509.
to the same.
Sec. 2526. The right of civil remedy is not merged in a public Civil remedy offense, but may, in all cases, be enforced independently of, and notumersed in in addition to, the punishment of the latter.
When a wrongful act act produces death, the damages shall be disposed of as personal
property belonging to the estate of the deceased, except that if C'51, 1698.
the deceased leaves a husb:ind, wife, child, or parent, it shall not be liable for the payment of debts.
[The word “enforcel" in the second line is printed “ forced but not all copies of the printed coile.]
A corporation is liable in a civil estate only are to be recovered, and action for wrongful acts of its ser- not those resulting to the next of kin. vants, done in its employment and Whether exemplary damages could producing death. Its liability, how- be recovered, quære: Sherman 1. ever, would not probably be held to West'n Stage Co., 24-515. exempt the immediate agent from In an action by the administrator liability: Donaldson v. M. & M. R. of a minor to recover damages to the Co., 18-280.
estate resulting from injuries causing Where an employe of a railroad his death, the recovery is limited to company received injuries through those damages accruing after the the wrongful act of a co-employe re- minor would have attained his majorsulting in death, the company was ity and up to the limit of his probable held to be the perpetrator " within expectancy of lile. The damages acthe language of Rev. § 4111, and cruing before majority are not to the civilly liable, (see $ 1207 and note): estate but to the father or other person Philo v. III. Cent. R Co., 33-47. entitled to the minor's services: Wal
Under this section damages to the Iters v. C. R. I. & P. Co., 36-458.
SEC. 2327. The actions contemplated in the two preceding Proceedings: limitation of
sections may be brought, or the court, on motion, may allow the action. action to be continued by or against the legal representatives or R. & 4111. C. 01, 1699.
successors in interest of the deceased. Such action shall be 9 G. A. ch. 174, di emed a continuing one, and to have accrued to such represen& 4.
tative or successor at the same time it did to the deceased if he had survived. If such is continued against the legal representative of the defendant, a notice shall be served on him as provided for service of original notices.
No notice to defendant is necesary | died during the pendency of a suit when the cause is contine in favor thereon, the action could not be conof the legal representa ive of plaintiff,tinued, jointly, against the adminisand the substitution of such repre- trator of the deceased and the sursentative is no cause of continuanc viving joint obligors: Pecker v. Canon behalf of detendant: Masterson r. non, 11–20; Mirsh v. Goodrel, 11-474. Broin, 5'-142.
As to survival of actions pending Under Code of '51, held that where on appeal, see $ 3211.
one of the joint makers of a note Construction:
SEO. 2528. The rule of the common law that statutes in deroTall not appli." gation thereof are to be strictly costrued has no application to
this code. Its provisions, and all proceedings under it, shall he C. '51, 8 2503.
liberally construed with a view to promote its objects and assist the pries in obtaining justice.
Similar provision in Code of '51, | burg, 11-59; Kramer v. Ribman, 9applied: Strither v. Steamboat Ham- ( 114.
the times herein limited respectively after their causes accrue and
C. '51, 1639.
1. Actions founded on injuries to the person or reputation, Two years,
3. Those against a sheriff, or other public officer, growing out 22
4. Those founded on unwritten contracts, those brought for Five years.
of this or of any otiier of the United States, or of the federal
IN GENERAL : The statute of lim- still valid and may be enforced in the
Decatur Co., 34-524; and though the
name of the state, if for the benefit
City of Burlington v. B. & M. R. R. I ted, discussed: K’oons v. C. & N.W. Co., 41-134; City of Pella v. Scholte, R. Co., 23-493. 24-283.
Par. 3. An action against a A debt which is simply barred by treasurer, not his bond, for the statute cannot be regarded as moneys received and appropriated, is paid or extinguished : Austin v. Wil- within this paragraph: Keoluk son, 46-362.
County v. Howard, 41-11; so an acIn case of fraudulent concealment tion against a treasurer and his sureof a cause of action by the party ties on his bond for failure to account against whom it exists, preventing for and pay over revenues in his the opposite party from acquiring hands, is within this clause and knowledge thereof, the statute will barred within three years. It does not commence to run until the cause not fall within the provisions of ( 5: of action was, or might have been, dis- The State v. Dingee 17–232; The State covered, and this, irrespective of the v. Henderson, 40-242. provisions of $ 2530 : Dist. T'p. of The action of mandamus against Boomer v. French, 40-601; Findley v. a public officer to compel the performStewart, 46-655.
ance of an official duty cannot be The statute of limitations must be maintained until there has been a specially pleaded and will be held refusal to perform such duty, and the waived unless taken advantage of by statute commences to run from the demưrrer or answer. (See Š S 2648, time when the plaintiff has a right 2650 and 2718): Robinson v. Allen, to demand the performance of the 37-27.
act, and he cannot delay or postpone The filing of an amended petition, it by neglecting to make such demand: if the cause of action remains the Prescott r. Gonser, 34–175; Beecher same, does not affect the question as v. County of Clay, 52-140. to whether the action is brought in In an action against the clerk of time: Cobb v. 1. C. R. Co., 38–601, the court for damages resulting from 626.
| his negligence in accepting an insultiThe statute of limitations does not cient stay bond, held, that the cause apply to an action for any portion of of action did not accrue
nor the the school fund, see $ 2542.
statute begin to run until the stay Par. 1. Injuries resulting in death expired: Steel v. Bryant, 49–116. are “ injuries to the person " within Under the Code of 1851, held, that the meaning of this section, and an the failure of a county judge to pay action isy the personal representative over money received by him in his therefor is barred in two years: Sher- official capacity was not the omisman v. Western Stage Co., 22-556; sion of an official duty within the S. C., 24-515; Nord v. B. & M. R. R. meaning of this clause, and, thereCo., 37-498; so also are actions under fore, that the three years limitation $ 1557 for injuries from the sale of did not apply to an action on his intoxicatinc liquors: Emmert v. b nd to recover such money: County Grill, 39-690.
of Poweshiek v. Ogden, 7-177. But in case of injuries resulting in PAR. 4. In order to constitute a immediate death, held, by two of the written contract sufficient to bring judges, that the cause of action ac- a case within the next paragraph and crued only to the personal representa- prevent the bar of five years from aptive, and the statute did not commence plying, the essential facts establishing to run until his appointment (but, see the liability of defendant, should be $ 2527 and note): Sherman v. West- in writing: Lamb v. W’ithrow, 31ern Stage Co., 24-515, 553.
164. In case of injury to the person, the This paragraph, and not $ 3261 statute of limitations begins to run governs in actions for use and occupafrom the time of the injury and not tion of real estate : Tibbiiis v. Morfrom the time the extent thereof is ris, 42–120. discovered by the person injured: An action for relief on the ground Gustin v. County of Jefferson, 15- of fraud must be brought within five 158.
years from the time of its discovery. The double damages allowed (See $ 2530.) In such cases defenagainst a railroad company for killing dant pleading the statute of limitastock (8 1289) are not a statute pen- tions must show that plaintiff had alty so as to come within this section. knowledge of the fraud more than The action may there!ore be brought five years before the action was within five years.
What are stat- brought : Balduin v. Tuttle, 23-66 ; ute penalties as here contempla- | Harlin v. Sterenson, 30-371.
The statute commences to run as such a judgment as is here contem against an unliquidated claim against plated: Smith v. Shawhan, 37-533. a county from the time the account FOR RECOVERY OF REAL PROPaccrues and not from the time the de- ERTY: Mere possession for the time inand required by $ 2610 is made : mentioned is not sufficient to enable Baker r. Johnson Co., 33-151 ; Kin- defendant to rely on the bar of the sey r. Louisa Co., 37-438.
statnte. Such possession must be Cpon an unwritten contract for a adverse, under color of title or claim loan of money payable on demand, of right: Wright v. Keithler, 7–92; the statute commences to run from Jones v. Hockman, 12-101; Clagett the time of the loan: Hall v. Letts, v. Conlee, 16-187; Larum v. Wilmer, 21-396.
35-244; Davenport v. Sebring, 52As to when an action against the 364. county to recover taxes erroneously But, claim of right alone is suffipaid is barred, see Callanan v. Coun- cient. Color of title is not essential: ty of Madison, 45–561, in notes to Ibid; Colvin v. McCune, 339—02. $ 870.
A tax deed, void on its face, is suffiPar, 5: CONTRACTS. Actions to cient to give color of title:
Coirin v. enforce specific performance of a McCune, :29–502. contract to convey real essate are A descent cast, or a devise, gives within this paragraph: Wright v. color of title, although the ancestor LeClaire, 3–221.
or, devisee was a mere trespasser : In an action to recover the part of Hamilton v. Wright, 30–180. the purchase money paid, in case of The adverse possession must be breach of written contract to convey, under claim of right with intention to the statute commences to run from claim title, and not by agreement with the time of demand and refusal to the true owner: McNamee v. Moreconvey, and not from date of pay- land, 26–96. ment of the money, such action not The possession, to be ailverse, must being for money had and received: be actual, continued, visible, notoriDeming y llaney, 23-77.
ous, distinct, and hostile, and comVonTGAGES: The linitation of menced under claim o color of title, this paragraph is applicable to suits but actual residence on the land is not for the lo eclosure of mortgages: necessary to constitute such possesNerman r. DeLorimer, 19-244; and sion. Any acts which are open and also to actions to redeem: Gower v. notorious, done under claim or color Winchester, 33-303; Green v. Tur- of tiile and continued for a necessary ner, 38-112.
time will justify the finding of adAn action to foreclose or redeem verse possession: Robinson v. Lake, from a mortgage is barred at the 14-121; Booth v. Smill, 2.3-117. same time as an action at law on the The title under which the adverse mortgage debt: Smith v. Foster, possession is held need not be valid 41-142; but a mortgage is not barred and perfect, but must be claimed in so long as the debt is unpaid and good faith; nor need the possession capable of being entorced:' Clinton be shown to have been known to the Co. r. Cor, 37-570; Briwn 1. Rock- adverse party or his grantor: Close v. houl, 49-282.
Samil, 27-503. Adverse possession for more than Adverse possession must be open ten years after the aceruing of a right and notorious, and if so, the person of action on the mortgage is a bar to against whom it is maintained is prean action to foreclose: Jamison v. sumed, as matter of law, to know of Perry, 38–14.
it: Teabout v. Daniels, 38–158. A mortgagor does not hold ad- A mere continuance in possession versely to his mortgagee, but he may by ihe grantor, after conveyance by convert his posse sion into an adverse him, will not ripen into a right to rely possession: Ibid.
upon the statute of limitations: Liis The mere possession of a mortga- ermore v. City of Maquoketa, 35gee will not be held adverse to the 358. mortgagor, even after payment of the Merely paying taxes upon wild mortgage deht, so as to give him the lands and occasionally looking at benefit of the statute. Something them and showing them to others, beyond mere possession after pay- | held, not such actual, visible, notoment is necessary to make such pos- rious, adverse possession as is necessession adverse: Green v. Turner, sary to enable a party to take advant38-112, 118.
age of the statute: Brown v. l'ose, JUDGMENTS: The order of a pro- 18–231. bate court allowing a claim, is not The adverse possession need not be