Johnson v. State , 173 Okla. 508 ( 1935 )

This action is a proceeding in bastardy instituted in the county court of Noble county, upon the verified complaint of Carrie Meisinger, charging the plaintiff in error, H.A. Johnson, with being the father of a bastard child.

The parties will be referred to as in the trial court.

A general demurrer to the complaint was overruled. A plea of not guilty was entered and the case was tried to a jury, resulting in a verdict finding the defendant guilty, in the court rendered judgment that the defendant pay to said Carrie Meisinger the sum of $8,700 in monthly installments during the minority of the child.

The defendant has appealed from this judgment.

The defendant contends that the cause should be reversed on the ground that the complaint shows upon its face that the cause of action was barred by the statute of limitations and the trial court erred in overruling the demurrer thereto, and in overruling the motion for new trial. The compliant was filed July 19, 1932, in which it was alleged that the child was born on the 13th day of February, 1929, and that the complainant had resided in Noble county for 13 years. The action was thus brought more than three years after it arose. The proceedings authorized by section 1718, O. S. 1931 (section 8059, C. O. S. 1921), is in the nature of a civil action, which under the provisions of the second paragraph of section 101, O. S. 1931 (section 185, C. O. S. 1921), is barred if instituted more than three years after the cause of action arose. Libby v. State, 42 Okla. 603, 142 P. 406; Powelson v. State, 69 Okla. 72, 169 P. 1093; Impson v. State,106 Okla. 246, 27 P.2d 359. The complaint showed upon its face that the cause of action was barred by the three-year statute of limitations.

It is the rule in this state that where a petition shows clearly upon its face that more than the statutory period of limitations has elapsed and there is no allegation in the petition which takes the cause out of the operation of the statute, a general demurrer is sufficient to raise the question and should be sustained and it is error to overrule the same. Missouri, K. T. Ry. Co. v. Wilcox, 32 Okla. 51, 121 P. 656; Martin et al. v. Gassert, 40 Okla. 608, 139 P. 1141; Froage et al. v. Webb, 65 Okla. 149, 165 P. 150; Raymer et al. v. Comley Lumber Co., 169 Okla. 576, 38 P.2d 8. Under the provisions of section 1723, O. S. 1931, section 8064, C. O. S. 1921, no other plea than "guilty" or "not guilty" is permitted, and in this case the issues were made by the defendant's plea of "not guilty," and he did not waive the right to raise the question of the statute of limitation by entering such a plea. One of the assignments of error set forth in the motion for new trial was the overruling of the demurrer to the complaint, and in both the motion for new trial and in the petition in error the defendant set forth the overruling of the demurrer to the complaint as an assignment of error.

In the various state and federal courts many actions have been held barred by statutes of limitation when the bar of such a statute was clear. Our laws make such a bar absolute. Note the following partial quotation from our statutes:

"Civil actions can only be commenced within the periods prescribed in this article," etc. (section 98, O. S. 1931.)

And "Actions * * * can only be brought within the periods hereinafter prescribed * * * and at no time thereafter." (Section 99, O. S. 1931.)

And in section 101, O. S. 1931, the applicable section here:

"Civil actions, other than for the recovery of real property can only be brought within the following periods * * * and not afterwards."

And again in section 108, O. S. 1931, it is provided in part:

"When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense."

The applicable provisions of the statute are binding upon all, and require beyond any question that this action be held to be barred by the allegations of the complaint, even though the cause of action may have been most meritorious in the beginning when the cause arose and the defendant then without any defense on the facts. The complaint alleges no facts to toll the statute, or to avoid the plain bar of the statute, which is made apparent by the face of the complaint, and for that reason the trial court erred in overruling the demurrer to the complaint.

If the proper order on demurrer had been made in the trial court, an amended complaint might have been proper, or there might have been some request to amend the complaint. The cause should therefore be remanded to the trial court, with directions to vacate the judgment rendered and sustain defendant's demurrer to the complaint, without prejudice to the right to make application to amend.

The judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

McNEILL, C. J., and RILEY, BAYLESS, PHELPS, CORN, and GIBSON, JJ., concur. OSBORN, V. C. J., and BUSBY, J., dissent.