The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-04-24

Justice Nielsen yesterday handed
down his decision on the demurrer in
the case. of William Andrews VS., Ann
Elmer in which was involved the ques-
ton of whether the statute of Imita-
items ran against a plaintiff whose case
was adjudicated by person sitting il
legally as a justice of the peace. His
honor found that the statute of limi-
tationS did not run against the plain
tiff, and, therefore, the demurrer was
overrufed-
THE OPINION.
The full. text of the opinion is as fol-
lows:
This action was originally brought
before one Blazer, within the limits of
Salt Lake City. who was then acting
as Justice of the peace, under an ap-
pointment by the county Selectmen OF
this county, some time i'll 1894, while
Utah was a territory. The said Blazer
rendered judgment against the defend
ant herein, upon which the defendant
appealed to the district court. The ap-
peal upon said case was heard on or
about the 1st day of September, 1897,
and the Judgment duly dismissed by
said court. for want Of jurisdiction IN
the court below; holding that the court
below was neither a justice of the
peace de facto or de jure.
The plaintiff now comes into this
court and files another complaint, on
the 9Th day Of March, 1895, alleging that
the defendant is indebted to him in the
sum of SIS, f0r work and labor per
formed by him at the defendants re-
quest. To this complaint the defendant
files demurrer. and pleads the statute
of limitations.
There are only TWO questions which I
consider necessary to decide in this
case, and they are: First-Has the stat
Ute of limitations run against defend
ants cause of action, while the same
has been pending on appeal in the dis
trict court. so as to bar him from en-
tering a suit at this time, on the same
cause of action as above stated?
Second-Did the plaintiff fail to ex-
ercise due care in ascertaining whether
Blazer was duly qualified to act as jus
tiCe of the peace, or, that by reason
of plaintiffs carelessness and negH-
gence in fling his cause of action in a
court that had no legal existence so
as to exclude him from bringing this
action again, and, if so, should the
statute of limitations be strictly con-
strued against him by reason of such
negligence?
These questions, so far as the court
is able to ascertain. have never. in
their present form, been passed upon
by any court in this state.
Section 1888 of the revised statutes
of Utah says: If any action be COM
menced within due time. and judg-
ment thereon for the plaintiff be re-
versed, or if the plaintiff fail in such
action or upon a cause OF action other
wise than upon the merits. and the
time limited for the same shall have |
expired, the plaintiff. or, if he is dead, |
and the. cause of action survives his |
representatives may commence new |
action within one year after the re-
versal or failure.
1t seems clear to this court that the
trainers of this section intended to Sc
cure that class of litigants from loss, !
who. from causes incident to the adj i
minlstratiOp of the law, are compelled |
TO abandon their present cause of &C
ton, either by their own act, or the |
act OF the court when either would |
leave them a cause of action yet I'M
determined, by giving a reasonable time |
in which to renew such action in !
proper court.
As soon as the want of Jurisdiction of |
the court below was legally passed |
upon and decided, the plaintiff has, in /
my opinion, resOrted to the only rem |
edy left open for him. and which 1 con-
slider strictly within the saving clause |
of the section Of our statute above re-
ferred to-
As to the second question or conten-
ton that the plaintiff did not exercise /
due care when he filed his cause of ac- (
ton in Blazers court, l am of the |
opinion that the plaintiff had a right |
to presume from the surrounding cir |
cumstances, that Blazer was duly ap- i
pointed TO act as justice OF the peace, |
having been appointed by county Sc |
lectmen, filed his bond and taken the /
oath of offices, and, SO far as the plain !
tiff could see, there was nothing to in !
dictate that he was neither q justice of |
. H.. 4 Il
fore we would be doing the plaintiff an /
injustice by saying that he should be
debarred from entering a second suit |
for the same cause Of action, for Ghe !
reason that he was so grossly careless
and negligent.
s The court in 81 Miss. GO, in overrui-
ing a demurrer to a second suit that
had been filed, in case almost similar
to the one at bar, says: 1t makes no
difference that the court below dis
missed the action for want of jurisdic-
ton. The plaintiff had the right, under
our statute, to bring the action within
one year after the same was dismissed !
in a court of competent Jurisdiction
In 109 L.. S. reports. 426, the court
says: 1T is well settled that a judg-
ment of a court, dismissing a suit for
want Of jurisdiction, does not conclude
the plaintiffs right to file another ac-
ton"
In This case the cOunSel Tor defend
ant contended that the bringing of the
suit by plaintiff. in a court having no
Jurisdiction, was such a gross negli-
gence on his part that the statute of
Limitation could not be prevented from |
running against him. But the court |
held, III a unanimous opinion, to the
contrary.
See also the following authorities:
40 Ark, 249 (exactly in point.
20 No, 81.
70 Mo-. IA
10 Peck, 3S3.
The court having spent considerable
time 10 ascertain the law in this case
and after a careful examination of all
authorities that 1 have been able to
find bearing on the case, 1 am salts
fed that the demurrer filed by the de-
PENDANT herein should be overruled.
and il is so ordered.
c. NJ. NIELSEN,
Justice of the Peace
CHIEF JUSTICE DISSENTS.