The Salt Lake herald-Republican. [volume] (Salt Lake City, Utah) 1909-1918, 1910-04-10
UNIQUE LAW POINT
Up FOR DECISION
Does Statute of Limitation Run
When Demurrer Has Been
Sustained?
WILL CREATE PRECEDENT
FINDING OF DISTRICT COURT
CERTAIN TO BE APPEALED.

Raising the point that the action is
debarred through the operation of the
statute of limitations, even though the
suit was brought within the required
time. attorneys for the Oregon Short
Line Railroad company yesterday IN
covered legal problem which has been
PASSED upon in some of the states of
the Union. though it had never before
arisen in the courts of Utah. The ques-
ton was raised before Judge George G.
Armstrong by George H. Smith OF the
Short Line in the suit of Mabel Y. Held
ana others against the railroad COM
pany, in which $4,000 damages are
sought.
The suit was filed in the district court
on June 29, 1868, more than a year after
the accident. On July attorneys for
| the railroad company filed a demurrer
to the complaint on the grounds that
the facts alleged were not sufficient to
state a good cause of action. The de-
murrer was not called up by the plain
titfs until February Of this year. On
February 26 the demurrer was sustained
and thirty days additional time was
granted by the court to amend the COM
plant The amended complaint was
filed on March %, and it was attacked
yesterday by attorneys for the Short
Line, who insisted that the action was
debarred by the statute of limitations.
Judge Armstrong gave each side I'M
til May 10 to submit briefs, upon which
he viii make his ruling-a ruling which
will set precedent in Utah, and which
will almost certainly go 10 the supreme
court Of the state for final determine
ton
The first complaint was filed within
the statutory time after the accident,
but there were omissions of some essen
tial points to which the attorneys for
the railroad company demurred. But
the demurrer was allowed to go without
contest from July. 1909, until February,
1910, and during that time the statute
Of limitations had run, as it was more
than two years from February after
the accident occurred.
With the sustaining of the demurrer
by Judge Armstrong, the case was
placed as if it had never been filed, &C
cording to general practices, and the
amended complaint, therefore, was the
only thing that could be taken into
consideration in the. case. But by the
time the amended complaint had been
1led, the statute of limitations had run
its course, and the attorneys for the
railroad company claim that it estops
any action in this case.
Problem for H 'gh Court.
This was the point raised yesterday
by Attorney Smith for the railroad
company and it was an interesting one
for the other attorneys in the court
room. In making his argument for the
dismissal Of the action, Attorney Smith
declared that this practice had been
outlined in many Of the supreme courts
Of he ST -,
the point had been ruled upon by the
supreme courts Of nineteen states, and
that fourteen of the nineteen held that
the claimant was estopped from suing
Tor damages by the statute of limita-
tons, claiming the default before the
amended complaint was filed. The 9TH
er four ruled that the claimant still had
a standing, through the filing of the
action in the first place, and that the
action was not estopped.
Even if this case is not taken to the
supreme court of the state, the point
will go up for final decision Of the high
est court of this state within a short
time" said a prominent attorney in
discussing the matter last night. 1--WE
will have to get a ruling from our su-
preme court on this point
Here is a hypothetical case: Suppose
Judge Armstrong should have Overruled
the demurrer and that damages of S1O,-
600 had been allowed. Then suppose
the railroad company had appealed to
the supreme court Of the state, citing
errors, among which was that the de-
murrer had not been sustained. You
know it takes at least d year. at the
shortest, for an appeal to the supreme
court and decision in any state. We'll.
suppose the supreme court ruled that
Judge Armstrong had erred in not sus-
tanning the demurrer, and remanded
the case for a new trial
You can see that at this rate it is
certain that the statute of limitations
would have run its course. In remand
ing the case for a new trial and holding
that the demurrer should have been
sustained, it is certain that an amend
ed complaint would have had to be
filed. Then in that case the action
would be barred because of the statute
of limitations. You can see the effect. >"