Imagens das páginas
PDF
ePub

Ham v. Kunzi.

Upon petition in error, the circuit court reversed the judgment, upon the sole ground that the court of common pleas erred in overruling the demurrer to the petition. Thereupon, Mrs. Ham filed her petition in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the 'udgment of the court of common pleas.

C. J. Marriott and F. M. Marriott, for plaintiff in error.

The simple fact that plaintiff in error might have brought her suit under section 28, of the old Code, earlier than she did, could not have the effect of repealing by implication the saving clause of the statute extended to married women. Hurlbut v. Wade, 40 Ohio St., 603; Ashley v. Rockwell, 43 Ohio St., 386.

The amendment of section 4986, by the act of April 14, 1886, repealing the saving clause, to married women, of the former section, cannot be considered as affecting the question involved, as six years had not elapsed from the date of this amendment, before the bringing of the suit, so that there is but the one amendment of the statute left, to be considered as affecting the question involved, and that of March 26, 1883, Ohio Laws, vol. 80, p. 77.

We think it is quite clear that this amendment did not affect, nor was it intended to affect the right of plaintiff in error to sue upon her claim against defendant in error, at any time within six years after the removal of her disability of coverture, and her rights continued unaffected after the amendment of 1883, just as they existed before.

Ham v. Kunzi.

The subsequent amendments of the different sections of the statute of limitations do not affect this general provision found in section 4974, and were not so intended. Webster et al. v. Bible Society, 50 Ohio St., 17.

Under our claim that the statute above referred to, in S. & S., page 1, prevents the amendment of section 4986 of March 26, 1683, from affecting the cause of action of plaintiff in error, we cite, without comment thereon: Bode Adm. v. Welch, 29 Ohio St., 19; Railroad to. v. Belt, 35 Ohio St., 479; Lafferty v. Shinn, 38 Ohio St., 46.

S. A. Webb and Harry E. Stafford, for defendant in error.

Plaintiff alleged in her petition that it was her own separate property on which she was seeking to recover, and under this statute as amended there can be no question but that this action was barred when commenced, March 3, 1892.

But an attempt is made to support the position of plaintiff in error by claiming that two other sections are of "controlling importance." One, on page 1 of Swan & Sayler's Statutes, and which was carried forward into the Revised Statutes of 1880, section 79. Sec. 4974 is the other section cited to sustain her position.

The amendment of March 26, 1883, to section 4986 (O. L., vol. 80, p. 77), shows beyond doubt that it was the intention of the legislature to remove the disability of married women so far as rights of action growing out of her separate property were concerned.

A statute must be construed with reference to the subject matter of it, and its real object and true intent. Doyle v. Doyle, 50 Ohio St., 330. Courts must consider the policy of Statutes.

Ham v. Kunzi.

B. & B. v. Trustees, 19 Ohio St., 97; Wilber v. Paine, 1 Ohio St., 251; R. R. Co. v. Belt, 35 Ohio St., 481.

Plaintiff in error relies on the general statutes to support her position, but when the general provisions of the statutes are varied by special provision of the same or another statute relating to the subject, the special section will govern. State ex rel. v. McGregor, 44 Ohic St., 628; Brower v. Hunt, 18 Ohio St., 311.

We contend that the act of March 26, 1883, if given effect as the legislature intended, bars the action brought by plaintiff. Lehman v. Mc Bride, 15 Ohio St., 573; Commissioners of Knox Co. v. McComb, 19 Ohio St., 320; Ex parte Van Hagan, 25 Ohio St., 425; Trust Co. v. Reiter (Neb.) 66 N. W., 658; State v. Moore (Neb.) 67 N. W., 876; Anderson v. City of Camden (N. J. Sup.), 33 A., 846; Am. & Eng. Ency. of Law, vol. 23, p. 485 (Note 4).

BURKET, C. J. The circuit court was of the opinion that the action was barred by the six years statute of limitations, and that for that reason the demurrer to the petition should have been sustained.

The money was loaned in the month of February, 1878, to be paid back in a short time, which would. mean a reasonable time, not beyond one year.

The statute of limitations then in force was found in chapter 3 of the Code of Civil Procedure, and the limitation for the recovery of money loaned, not evidenced by written instrument, was six years. Section 19 of the Code was then a part of said chapter 3, and reads as follows:

"Section 19. If a person entitled to bring any action mentioned in this chapter, except for a penalty, or forfeiture, is, at the time the cause of

Ham v. Kunzi.

action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability shall be removed." S. & C., 949.

This section was carried into the Revised Statutes without change, and became section 4986, found in title 1, division 2, chap. 2, sub-division 3.

Said sub-division 3 of chapter 2 is devoted to the statute of limitations, and it is therein provided in section 4981, that actions upon contracts not in writing, can be brought only in six years after the cause of action accrues. This limitation subject to the saving clause in said section 4986, applies to the cause of action of the plaintiff. The question is, when was the disability of being a married woman in her case removed?

This section 4986 remained in the same form, and with the same saving clause in favor of married women until March 26th, 1883, 80 O. L., 77, when it was amended so as to read as follows:

"Section 4986. If a person entitled to bring any action mentioned in this sub-division, except for a penalty or forfeiture is, at the time the cause of action accrues, within the age of twenty-one years, a married woman, insane, or imprisoned, such person may bring such action within the respective times limited by this chapter, after such disability is removed; provided, however, that the disability of being a married woman shall not extend to rights of action of a married woman, concerning her separate property, or growing out of or concerning business transacted in her own name."

Ham v. Kunzi.

The section as so amended became part of said chapter 2, sub-division 3, and is to be read and construed as if introduced into the place of the repealed section in said chapter and sub-division. McKibben v. Lester, 9 Ohio St., 627.

By this amendment of March 26, 1883, of said section 4986, the disability of being a married woman was removed as to rights of action concerning the separate property, and as the petition in this case shows that the money sought to be recovered is the separate property of the plaintiff, it is urged, and the circuit court held, that the statute of limitations began to run upon the removal of her disability on March 26th, 1883, and that the cause of action became barred in six years from that date.

This might be so were it not for the provisions of section 4974, Revised Statutes, passed in 1880, and also found in said chapter 2. Said section reads as follows:

"Section 4974. This chapter shall not apply to actions already commenced, nor to cases wherein the right of action has already accrued; but the statutes in force when the action accrued shall be applicable to such cases, according to the subject of the action and without regard to the form; nor shall this chapter apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property, in possession thereof, to obtain a conveyance of it."

As section 4986 as amended March 26th, 1883, is to be regarded and construed as though intro. duced into the place of the repealed section, it forms a part of said chapter 2, and by the express provisions of said section 4974, said chapter 2 does not apply to cases wherein the right of action had

« AnteriorContinuar »