Parker
Van Dyke v. Parker
Opinion
Lead Opinion
Garrecht, J.
On January 21, 1931, the appellee filed a complaint against the appellant and Hoval A. Smith, based upon two promissory notes executed by them at Chicago', Ill., on October 30, 1917, in favor of the appellee. Each note was for $5,000, one becoming due on December 30, 1918, and the other on June 30, 1919. The complaint purported to state a separate cause of action on each note.
The defendants filed a demurrer, setting up that the complaint did not state sufficient facts to constitute a cause of action, and pleading the four-year statute of limitations of Arizona, section 2061, Revised' Code of Arizona 1928, since the instruments sued upon were executed outside of Arizona. The demurrer was sustained.
On August 26, 1931, the appellee filed a second amended complaint, containing the same allegations as the original complaint, but adding to the first cause of action, the following: “That thereafter, and on or about the 1st day of January, 1927, the defendant, Cleve W. Van Dyke, acknowledged the justness of the claim of the plaintiff upon said promissory note in a writing signed by him.” The appellee set forth in haec verba the instrument that he relied upon to toll the statute of…
Dissenting Opinion
Haney, J.
(dissenting).
I am unable to agree with either the reasoning or the conclusion expressed in the majority opinion with respect to the application of the Arizona statute of limitations to the facts in this case, and because I think that the law óf Iowa is determinative as to the time when the causes of action accrued, 1 ******and with respect to the effect of partial payments, 2 1 dissent.
Scudder v. Union National Bank, 91 U.S. 406 , 23 L.Ed. 245 ; Glenn v. Liggett, 135 U.S. 533 , 10 S.Ct. 867 , 34 L.Ed. 262 ; Gassaway v. Hopkins, 38 Tenn. (1 Head) 583 ; Crofoot v. Thatcher, 19 Utah, 212 , 57 P. 171 , 75 Am.St.Rep. 725 ; Sterrett v. Sweeney, 15 Idaho, 416 , 98 P. 418 , 20 L.R.A.(N.S.) 963, 128 Am.St.Rep. 68 .
Sterrett v. Sweeney, supra; Theis v. Wood, 238 Mo. 643 , 142 S.W. 431 . Compare: Obear v. First Nat. Bank, 97 Ga. 587 , 25 S.E. 335 , 33 L.R.A. 284 ; Tilliard v. Hall, 11 Tex.Civ.App. 381 , 32 S.W. 863 .