Mattingly v. Helm , 1867 Ky. LEXIS 345 ( 1867 )

Opinion of the Court by

Judge Peters:

Appellee brought this actiou in the court below, on the 27th of March, 1861, against appellant, on a note executed by him to Crawford Lowery in May, 1841, due in May, 1844, and assigned by Lowery to appellee in 1855.

The law and facts were submitted to the judge, and a trial was had in the court below of the several issues presented by the pleadings, which resulted unfavorably to appellant, and he now seeks to reverse the judgment rendered against him.

No bill of exceptions is presented in the record, and we are not informed what evidence was introduced in the court below.

Two propositions, however, are relied upon by the counsel for appellant for a reversal:

1st. The Statute of Limitations.

2d. Whether or not the prosecution of the two actions by appellee against appellant, for the collection of this debt which he refers to in his answer, would not be sufficient to stop the running of the statute, if it was otherwise available as a defense to this action, we need not now stop to consider, as we are satisfied that defense is not made out.

The statutory bar provided for by chapter 63, Rev. Stat., did not embrace pre-existing causes of action. the Act of 1858 by which it was attempted to make the provisions of chapter 63, supra, extend to and embrace all cases whether the right of action bad accrued before or after the adoption of the Revised Statutes was decided by this court to> be in conflict with the thirty-seventh section of the second article of the Constitution of Kentucky. Chiles & Thomas v. Monroe, 4 Met. 72.

Tbe act approved 15th March, 1862, entitled, an “Act to amend chapter 63, Rev. St at., entitled, f limitations of action/ ” was decided by this court to be in conflict with tbe Constitution of tbe United States. Berry & Johnson v. Randall, 4 Met. 292. So that when this action was brought there was no Statute of Limitations which could bar it.

As to tbe second proposition, it is sufficient to say appellant is the only obligor in the note sued on; tbe judgment referred to in his answer is not against him; even if it could be regarded as available for any purpose to appellee it cannot affect him — and consequently it cannot shield him from the payment of a debt which he alone promised by his writing to pay.

Wherefore, the judgment is affirmed.