STATEMENT OF THE CASE.

A. B. Russell, in settlement of an old debt, gave Geo. C. Smith $200 in cash and a note for $300, payable in two years. The note was drawn "to the order of Geo. C. Smith." Smith lost the note, and it was found by a man named Jackson, who refused to give it up. Smith sued Russell upon the note, alleging in his petition as an excuse for not filing the note, that it was "wrongfully held by a third party." The lower court decided that the petition of the plaintiff (Smith) failed to show a cause of action, and gave judgment in favor of the defendant (Russell).

On appeal the Supreme Court sustained the finding of the lower court, giving the plaintiff the right to amend his petition and a new trial. Smith's attorney amended his petition and at once began a second trial.

The petition in the first trial was filed by Smith's attorney on May 5, 1906. The date of the decision of the Supreme Court sustaining the finding of the lower court was October 3, 1906.

The six years prescribed by the Statute of Limitations, within which the action should be brought, expired September 4, 1906.

In the second trial Russell's attorney entered a demurrer on the ground that the action was barred by the Statute of Limitations.

The lower court sustained the demurrer.

The question is whether the Supreme Court should or should not affirm the decision of the lower court sustaining the demurrer.

All the contestants were instructed to appear as counsel for Smith in an appeal to the Supreme Court from the decision of the lower court which sustained the demurrer of Russell's attorney.

The case not being local the contestants were informed it was not necessary to regard local court rules or the provisions of local state statutes.

In determining the merits of the briefs submitted, the judges marked on a basis of 100 points as perfection. A possible 50 points being allowed for clear, orderly reasoning and logic; a possible 30 points for research, citation, and application of authorities; a possible 10 points for style and rhetoric; a possible 5 points for appearance; and a possible 5 points for brevity.

The Brief that Won First Prize.

By CHARLES E. FEIRICH,

Member of the Cass of 1907, Chicago-Kent College of Law, Member of Fuller Chapter of Legal Fraternity Phi Delta Phi.

This is an appeal from the decision of the lower court sustaining a demurrei to the amended petition of appellant. The demurrer was entered on the ground that the action was barred by the Statute of Limitations. So far as relevant to the question to be decided here, the facts are: Appellant originally sued on a note for $300 given him by appellee in part payment of an old debt. The lower court decided that the petition of appellant did not state a cause of action. The case was then taken by appeal to this Court, and the finding of the lower court was sustained, appellant being given the right to amend his petition and a new trial. Appellant at once amended his petition and began a second trial. The petition in the first trial was filed by appellant on May 5, 1906. The date of the decision of the Supreme Court sustaining the finding of the lower court was October 3, 1906. The six years prescribed by the Statute of Limitations, within which the action should be brought, expired September 4, 1906. In the second trial appellee entered a demurrer on the ground that the action was barred by the Statute of Limitations, which demurrer, as before stated, was sustained by the trial court. The question to be decided by this Court is whether or not it should affirm the decision of the trial court in sustaining the demurrer.

BRIEF AND ARGUMENT.

The defense of the Statute of Limitations must be specially pleaded, and cannot be availed of by demurrer in an action at law, even though it appears on the face of the declaration that the limitation prescribed by the Statute of Limitations has expired.

The defense of the Statute of Limitations was permitted by the court below. to be interposed by a demurrer filed by the defendant, which demurrer was sus

tained. This was error, because in an action at law the Statute of Limitations must be pleaded specially if the defendant desires to avail himself of that defense.

In actions at law, as contradistinguished from actions under the code, it has always been the established rule that if the defendant desires to avail himself of the statute of limitations as a bar to the demand in suit, he must plead the defense. He cannot demur to the declaration, even where it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions to the statute, or any other matter which would prevent the bar from attaching.

Condon v. Enger, 113 Ala. 233, 21 South. 227;

Huss v. Central R., etc., Co., 66 Ala. 472;

Smith v. Richmond, 19 Cal. 477;

Bowman v. Mallory, 14 Ind. 424;

Matlock v. Todd, 25 Ind. 128;

Sleeth v. Murphy, 1 Morr. (Iowa) 321;

Zane v. Zane, 5 Kan. 134;

Hines v. Potts, 56 Miss. 352;

McNair v. Lott, 25 Mo. 191;

Allen v. Word, 6 Humph. (Tenn.) 284;

Chicago City Ry. Co. v. Cooney, 196 Ill. 466, 63 N. E. 1029;

Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895;

Thomas v. Morgan, 96 Ill. App. 629;

Wall, Adm'x, v. C. & O. R. R. Co., 200 Ill. 66, 65 N. E. 632;

Renackowsky v. Water Com'rs, 122 Mich. 613, 81 N. W. 581;

Norton v. Kumpe, 121 Ala. 446, 25 South. 841;

Huntville v. Ewing, 116 Ala. 576, 22 South. 984;

Barclay v. Barclay, 206 Pa. St. 307, 55 Atl. 985.

A few extracts are made from the opinions of the Courts in some of the cases above cited, which will suffice to show the rule of law on this point.

In Wall, Adm'x, v. C. & O. R. R. Co., 200 Ill. 66, 65 N. E. 632, the Court said:

"From the face of the declaration it appears that more than two years elapsed from the time of the injury to the bringing of the suit, and it is insisted by defendant in error that therefore the action could not be sustained, and hence the defense of the Statute of Limitations could be made by demurrer. Mainly on this ground it is insisted that the trial court properly sustained the demurrer. In equity, where it appears on the face of the bill that the cause of action is barred by laches or the Statute of Limitations, the defect may be reached by demurrer to the bill. But the rule is otherwise in common law pleading. The defendant cannot demur to a declaration even where it appears on its face that the limitation prescribed by the statute has expired, because plaintiff would thus be deprived of the opportunity of replying and pleading any matter which would prevent the bar from attaching. The defendant must plead the statute if he wishes to avail himself of it."

In Thomas v. Morgan, 96 Ill. App. 629, the Appellate Court of Illinois discusses this question at length, citing many authorities from various jurisdictions. The Court remanded the case for the error of the trial court in sustaining a demurrer to the declaration based on the Statute of Limitations, although the declara

tion showed on its face that the time allowed by the Statute of Limitations had expired.

In Hines v. Potts, 56 Miss. 346, 362, the Court said:

"It is urged that this case is barred by the Statute of Limitations. We cannot express an opinion as to this, because the bar of the Statute of Limitations cannot be availed of by a demurrer to the declaration, even though the cause of action set forth may appear to be barred. The Statute of Limitations must be pleaded, so that the plaintiff may, if he can, avoid the bar by replying facts which prevent it."

In Allen v. Word, 6 Humph. (Tenn.) 284, the Court said:

"The Statute of Limitations in a suit at law must be pleaded, and this whether the cause of action as stated appears to be barred or not; because the plaintiff may reply and prove a subsequent promise to pay the debt."

In Sleeth v. Murphy, 1 Morr. (Ind.) 321 (2d edition or reprint, vol. 1, p. 422), in a Per Curiam opinion it is said:

"We feel controlled in this matter by the decisions of other courts on like statutes. It has been of late years invariably held that a statute of limitations must be pleaded; that a demurrer will not lie, although the lapse of a sufficient time between the accruing of the action and the commencement of the suit should appear from the face of the declaration."

In Matlock v. Todd, 25 Ind. 128, 133, speaking of the Statute of Limitations, the Court said:

"But we do not decide the question, for the reason that it is not properly before us. It is raised on a demurrer to the complaint, and it has been held by this court, that in suits at law, to make the statute availing, it should be pleaded."

Extracts might be made from the opinions in the other cases cited to the same effect, but the foregoing clearly show that the rule is based on reason and appears to be invariably enforced by courts of last resort. If the defendant in the case at bar desired to avail himself of this defense, he should have pleaded it in bar instead of demurring to the declaration, for by doing the former the plaintiff would have had the right to plead any matter which would take the case out of the Statute of Limitations.

It is therefore urged that the decision of the trial court should be reversed because of the error of the trial court in allowing the defense of the Statutes of Limitations to be raised by a demurrer.

II.

Where an amendment does not set up a new cause of action, or bring in any new parties, the running of the Statute of Limitations is arrested at the date of filing the original pleading.

(A) An appellate court has power, in its discretion, to direct the trial court to allow an amendment to a declaration.

Before proceeding to the main argument under Heading II, it may be well to inquire into the power of an appellate court to direct the trial court to allow an

amendment to a declaration, and to ascertain to what extent the trial court is bound by such direction.

Where an appellate court reverses a decision of the lower court it is not uncommon to direct the latter to allow amendments, especially if the error will be obviated thereby. 1 Enc. Pl. & Pr. 617, and 3 Cyc. 458, citing many cases both of the United States Supreme Court and of the Supreme Courts of various other States.

The rule appears to be as stated by the Supreme Court of Minnesota in Farley v. Kittson, 27 Minn. 102, 107, 6 N. W. 450, 7 N. W. 267:

"Plaintiff now moves this court to modify its judgment on the orders appealed from, so as to give him leave to amend his complaint in the court below. We have no doubt of the power of this Court to grant the relief asked for; but it ought rarely to be exercised. It is a matter resting in discretion," etc.

This case was followed in Haven v. Place, 28 Minn. 551, 11 N. W. 117. In Wood et al. v. Lenawee Circuit Judge (Mich.) 47 N. W. Rep. 1103, it was held that mandamus will lie to compel a trial judge to allow an amendment which does not introduce a new cause of action, and which, if refused, will cause the loss of the action.

It is also to be noted that this power in the appellate court to direct the trial court to allow an amendment is necessary to the proper administration of justice. The appellate court is established for the purpose of reviewing the decisions of the trial court. Suppose, for example, that a trial court errs in a certain ruling in a case tried before him. The case is appealed and the error is manifest to the reviewing court, but in order that the cause of action may not be lost, it is necessary that an amendment should be allowed. If the reviewing court has no power to direct the allowance of such an amendment, and merely recommends it, the trial court may adhere to its previous opinion and accordingly refuse to allow the amendment. Should this ruling be appealed from, the same process would follow, and the effect of it would be to make the trial court superior in power to the appellate court.

This question, however, is not vital to the case at bar because the trial court allowed the plaintiff to file his amended petition, but it is discussed here in case it should be contended by appellee that the trial court was not bound to allow the amendment to be made and could have dismissed the case without allowing the amendment on the ground that it was barred by the Statute of Limitations. The question of the power of this Court to direct the amendment to be allowed in the trial court, will also be considered in connection with another point in this brief.

(B) An appellate court will, in a meritorious case, allow an amendment to the declaration for the express purpose of saving the cause of action from the bar of the Statute of Limitations.

The modern tendency of all courts is to allow amendments with great latitude in order to further justice; and this is especially true if compelling the party to bring a new suit would let in the defense of the Statute of Limitations.

Shieffelin v. Whipple, 10 Wis. 81, was an action on a promissory note. The plaintiff took a nonsuit, and subsequently the trial court refused him leave to