Metcalf v. Grover ( 1877 )

Campbell, J.,

delivered the opinion of the court.

The replication first filed to the plea of the statute of limitations states that at the time when the cause of action on the bond accrued to the obligee he was dead, and that no administration on his estate was had until October 30, 1874, and that this action was brought within twelve months after that time. This is a complete answer to the plea. It is well settled that if, at the time when a right of action accrues, there is no one in being to assert it, the statute of limitations will not commence to run until there is some one to sue.

It follows that the demurrer to the replication should have been overruled.

The replication to the plea filed after the judgment sustaining the demurrer to the first replication contained a sufficient answer to the plea, but improperly concluded to the country, instead of with a verification. The first replication had the same conclusion, but that was not made a special cause of demurrer to the first, and it was to the second, replication. Therefore the demurrer to the second replication was well taken as to the conclusion to the country, but it was not proper on this ground to render judgment final against the plaintiff. An amendment of the replication as to its conclusion should have been ordered, at the costs of the plaintiff, and leave given to the defendant to answer over.

Judgment reversed, and demurrer to the first replication to the third plea overruled, and leave given to the defendant to answer over, and the second replication to the third plea, and the demurrer to it, to be stricken from the files. The plaintiff shall be required to amend his replication by making it to conclude properly.