Funk v. Wingert

⁵²⁴ Adkins, J., delivered the opinion of the Court. This suit was on a promissory note dated May 27th, 1904, from Pomeroy Brothers & Ob., Henry F. Wingert, James A. Pomieroy and Edward L. Pomeroy to Louise M. Funk, payable sixty days after date. The nwrr. was filed on the 29th day of March, 1918, by Louise M. Funk, by her Committee, Albert J. Long, against the makers of said note. To this narr. defendants pleaded: First—That they never promised as alleged.

Second'— That they never were indebted as alleged. Third—That the alleged cause of action did not accrue within three years before this suit. And several other pleas of lirojitation in various forms. Subsequently all except the first three pleas were withdrawn. ■ Plaintiff for replication joined issne on first and second pleas and traversed the third plea, and later filed a second replication to defendants’ third plea as follows: “And for a second replication to the third plea of said defendants plaintiff says that at "the time said cause of action accrued, the said Louise M. Funk was non compos, and that the said Louise M. Funk has heen non comvos ever since said cause of action accrued.” • Defendants demurred to said second replication, which demurrer was overruled; whereupon defendants filed the following rejoinder, viz: “The defendants for rejoinder to the replication of Louise M. Funk, by her committee, Albert J. Long, to the pleas of Henry F.

"Wingert, James A. Pomeroy and Edward L. Pomeroy, trading as Pomeroy Brothers, in the above entitled cause, say: “That the said Louise M. Euuk was adjudicated a lunatic on the 4th of May, 1911, and that on the 5th day of May, A. D. 1911, the said Albert J. Long was appointed Committee and Trustee of the person and estate of the said Louise M. Eunk, with full power and authority to take charge of and manage the property and to assume control of the person of the said ⁵²⁵ Ionise M. Funk, ‘by the Circuit Court for Carroll County, sitting as a Court of Equity, and that the said Albert J. Long qualified as such Committee and Trustee by giving bond in the penalty of Five Thousand ($5,000) Dollars, with approved security, and has been acting as such Committee and Trustee continuously since to this date, and that the said Albert J. Long, Committee and Trustee as aforesaid, had full knowledge of the existence of and possession of the alleged note sued on in this case for a period of more than five years before filing this suit.” Plaintiff demurred to siaid rejoinder, which demurrer was overruled by a divided Court. Whereupon hy agreement of parties, case was heard before the Court, and on motion of defendants all the evidence was stricken out, and judgment entered in favor of defendants' for want of answer to the rejoinder, and judgment was entered accordingly in favor of defendants with costs of suit. From which judgment this appeal was taken. Appellant abandoned ber exception to tbe striking out of the testimony hy the lower Court, so the only question before us is on the demurrer to the rejoinder.

Appellant contends the demlurrer should have been sustained for two reasons: 1. Because limitations can be raised only hy a plea and not by a rejoinder after the rule day for filing pleas has passed. 2. Even if the question of limitations can he raised by rejoinder, the demurrer should have been sustained, because tbe appointment of a committee does not start the running of the Statute of Limitations against a lunatic, who wasi such at the time the right of action accrued. As to the first point we do not understand that the rejoinder in this case is intended to serve as an original defense of limitations., but only as an answer to the ■ replication to explain why the plaintiff in this, ease does, not come within the saving clause of the statute.

If the rejoinder were good in substance it would not, in our opinion, be demurrable, but ⁵²⁶ it is not necessary to