Anaconda Mining Co. v. Saile , 16 Mont. 8 ( 1895 )

De Witt, J.

We are of opinion that the district court did not err in holding that the negligence of defendent was excusable. The defendant alleges — and it is not denied — that the clerk told him on September 30th that there would be no business transacted by the court until November 14th. Hearing a demurrer was business of the court. The clerk modified his statement by saying, further, in his affidavit, that he did not intend to convey the idea that no demurrers would be heard. But the fact is that he said that no business would be done, and the idea certainly was conveyed to Mr. Adkinson that hearing demurrers was a part of the business which would not be transacted until after November 14th. Long prior to November 14th the demurrer was heard and overruled, and defendant’s default entered. We think Adkinson was excusable in relying upon the information which the clerk gave him. The clerk was the ministerial officer of the court. We think that an attorney had perfect right to rely upon the statement of such a court officer that no business would be done until a certain time. It is not as if this information came from a sheriff, or a bailiff, or some attendant upon the court. The clerk had the records of the court, and knew its business. It is not, as suggested by appellant, as if the clerk had told an attorney that the court would take a certain action in a case, that he would overrule or sustain a demurrer, or do some other judicial act. Perhaps an attorney would not be excused in relying upon the statement of the clerk as to some judicial act which the court was to do, but he certainly was justified in relying upon the statement of the clerk simply that no business was to be transacted by the court. We do not think that an attorney could ordinarily be expected to go further, and inquire of the judge as to such a matter, which was surely reasonably within the knowledge of the clerk.

This case is readily distinguishable from City of Helena v. Brule, 15 Mont. 429. In that case the attorney had no apology whatever for his negligence. He simply stated that he was not advised as to the ruling upon his demurrer. It did not appear that it was any one’s duty to advise him.

It has been suggested in this case that defendant’s attorney was inexcusably negligent, in that on the 30th of September he did not withdraw his demurrer, and file an answer, for the reason that it appears there was no merit to his demurrer. It is probably true that the demurrer was not well taken, for, if it had been, defendant would doubtless have appealed from the judgment entered after overruling his demurrer. But we cannot say that it was negligence not to withdraw the demurrer, .and file an answer, on September 30th. It certainly is. a practice not to be commended to file frivolous demurrers, but no penalty heretofore has ever been imposed by statute or by practice upon such action. We cannot say that, in consideration of the law and practice in that respect, it was negligence not to withdraw an unmeritorious demurrer, as long as the party had the right under the law to file it; and have it remain on record until disposed of by an order of the court in the ordinary course of practice.

Again, it is urged that the court erred in opening the default without imposing the terms that the defendant should not be allowed to plead the statute of limitations. It is argued by appellant that, as the defendant is asking to be relieved from his own negligence, he should not be allowed to hold plaintiff to the results of its negligence by virtue of its not commencing its action within the period of the statute of limi tations. But defendant’s negligence, we have determined, was excusable, while as to whether the plaintiff’s negligence in letting the statute of limitations run, was excusable, is not a question.

The statute of limitations is a defense to which all men are entitled as a right. The views of courts, since statutes of limitation were first considered, have changed. Originally, it was regarded as a statute of repose, and not one of presumption. This view changed, and the statute was regarded as one of presumption, and not of repose. The views changed again, the modern doctrine is that it is a statute of repose. (3 Parsons on Contracts c. 6.) We quote from that chapter as follows: “And at length, through a series of decisions, going-to show that the statute is intended for the relief and quiet of defendants, the law reached the conclusion justly and forcibly expressed by Mr. Justice Story in the case to which we have before referred. He says: ‘I consider the statute of limitations a highly beneficial statute, and entitled, as such, to receive, if not a liberal, at least a reasonable cdnstruction, in furtherance of its manifest object. It is a statute of repose, the object of which is to suppress fraudulent and stale claims-from springing up at great distances of time, and surprising-the parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses. The defense, therefore, which it puts forth, is an honorable defense, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters, in the only practicable manner, such as are ancient and unacknowledged, and whatever “may have been their original validity, such as are now beyond the power of the party to meet with all the proper vouchers and evidence to repel them. The natural presumption certainly is that claims which have been long neglected are unfounded, or, at least, are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their ignorance or their overconfidence in regard to transactions which have become dim by age. Yet I well remember the time when courts of law exercised what I cannot but deem a most unseemly anxiety to suppress the defense; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admission of the debt. Happily, that period has passed away; and judges now confine themselves to the more appropriate duty of construing the statute, rather than devising means to evade its operation. ’ ’ ’ The respondent also cites the following cases, which are in point: Freeman on Judgments, 4th Ed. Sec. 108, citing Ellinger's Appeal, 114 Pa. St. 505, 7 Atl. Rep. 180; Mitehell v. Campbell, 14 Or. 454; 13 Pac. Rep, 180; Herman v. Rinker, 106 Pa. St. 121; Sossong v. Rosar, 112 Pa. St. 197; 3 Atl. Rep. 768; Gourlay v. Hutton, 10 Wend, 595.

We are therefore of opinion that the district court exercised a proper discretion in opening this default, and, it so being determined that the negligence of defendant was excusable, he had the right to interpose the defense of the statute of limitations, and the court did not err in refusing to impose the terms that he be not allowed to plead that defense. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.