After this case had been heard and decided in Department One, a rehearing was granted in order that we might further examine the authorities touching upon the defense
of the statute of limitations, and particularly that we might consider whether or not at the time of the adoption of section473 of the Code of Civil Procedure the rule was that given in the decision by the Department. A further consideration of this subject has convinced us that the weight of recent authority is overwhelmingly in favor of the rule announced in the decision rendered in Department, and that even at the time of the adoption of section 473 the modern doctrine had been adopted in many jurisdictions. That part of section 473 of the Code of Civil Procedure which has reference to the reopening of judgments in cases in which personal service has not been obtained was adopted in 1872, and was based upon section 68 of the Practice Act as amended (Stats. 1865-6, c. 619, sec. 1). The case of Ekel v.Snevily, 3 Watts S. (Pa.) 273, [38 Am. Dec. 758], cited in the Department opinion, was decided in 1842, and was the first Pennsylvania case announcing the rule quoted by Mr. Justice Sloss. The earlier cases of Shock v. McChesney, 4 Yeates, (Pa.) 507, [2 Am. Dec. 415], and Bank v. Israel, 6 Serg. R. (Pa.) 294, cited in Ekel v. Snevily, were decided, respectively, in 1808 and 1820, but do not declare the rule as emphatically as it is set forth in Ekel v. Snevily, 3 Watts S. (Pa.) 273, [38 Am. Dec. 758]. Sanders and Davis, Administrators, v. Robertson,23 Miss. 389, decided in 1852, squarely determined that the plea of the statute is one to the merits. Gourlay v. Hutton, 10 Wend. (N.Y.) 595, was a case in which it was determined that on an ordinary application to set aside a default the court will not impose the condition that the statute of limitations be not pleaded. This case was decided in 1833. It will thus be seen that at the time of the adoption of section 473 of the Code of Civil Procedure, there was a conflict of decision in the various states of the union, some of the courts of last resort adhering to the doctrine of Brown v. Sutter, 1 Dall. (U.S.) 239, and the cases depending thereon, and others following the rule which is supported by the great weight of later authority and announced in the opinion rendered in Department.
We therefore adopt the aforesaid opinion as that of the court. It is as follows: —
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