Leffingwell

This is an appeal from a judgment for plaintiff, and is presented to this court upon the judgment-roll alone.

The action is upon a promissory note executed by defendant to one George W. Wittman, who, prior to the commencement of the action, indorsed the note to plaintiff.

The original complaint was demurred to upon the sole ground that it did not state facts sufficient to constitute a cause of action, the point of the demurrer being that the complaint did not sufficiently allege nonpayment of the note. The allegation in the complaint in this regard is, “That no part of said sum of $630, or interest due on said note, has been paid to plaintiff,” which of course is not inconsistent with full payment to Wittman, the assignor of plaintiff.

The demurrer was sustained and an amended complaint was filed, which is in all respects the same as the original complaint, save that it sufficiently alleges nonpayment of the note. More than four years elapsed between the maturity of the note and the filing of the .amended complaint, so that unless the filing of the original complaint tolled the running of the statute the action was barred. Defendant pleaded the bar of the statute by demurrer to…