School Dist. of Sedalia v. Deweese

U.S. Circuit Court for the District of Western Missouri

School Dist. of Sedalia v. Deweese

93 F. 602, 1899 U.S. App. LEXIS 3006

CourtU.S. Circuit Court for the District of Western Missouri

DecidedMarch 28, 1899

DocketNo. 2,204

StatusPublished

Cited by2 cases

This text of 93 F. 602 (School Dist. of Sedalia v. Deweese) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Western Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

School Dist. of Sedalia v. Deweese, 93 F. 602, 1899 U.S. App. LEXIS 3006 (circtwdmo 1899).

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Opinion

PHILIPS, District Judge.

This cause has been submitted on a general demurrer to the petition. It is not deemed necessary that the court should pass upon other questions raised by the demurrer, in view of the fact that the demurrer must be sustained on the ground that the cause of action, on the face of the petition, is barred by the statute of limitations. Waiving the consideration of the question as to when plaintiff’s cause of action first accrued, as against James O. Thompson, it certainly accrued, as against the First national Bank of Sedalia, not later than the month of July, 1893; and, as this suit was not instituted until the 20th day of January, 1899, more than five years had elapsed after the cause of action accrued when the suit was filed. The only attempt on the part of the plaintiff to avoid the operation of the statute is the following amendment to the petition, admitted at the hearing of this- demurrer, to wit:

“And, further, plaintiff states that it had no knowledge or notice of the fraudulent conversion or sale of said bonds by said Thompson as aforesaid, and did not discover the same until after the failure of said bank, in May, 1894.” '

This is wholly insufficient to avoid the statute of limitations in an action for money had and received. Wood v. Carpenter, 101 U. S. 141; Foley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92; Moore v. Smelting Co., 80 Mo. 86; Hoffman v. Parry, 23 Mo. App. 20. The [603]*603demurrer is therefore sustained, with leave to plaintiff to amend its petition, if it so desires, on or before the 20th day of April, A. D. 1899.

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PHILIPS, District Judge.

This cause has been submitted on a general demurrer to the petition. It is not deemed necessary that the court should pass upon other questions raised by the demurrer, in view of the fact that the demurrer must be sustained on the ground that the cause of action, on the face of the petition, is barred by the statute of limitations. Waiving the consideration of the question as to when plaintiff’s cause of action first accrued, as against James O. Thompson, it certainly accrued, as against the First national Bank of Sedalia, not later than the month of July, 1893; and, as this suit was not instituted until the 20th day of January, 1899, more than five years had elapsed after the cause of action accrued when the suit was filed. The only attempt on the part of the plaintiff to avoid the operation of the statute is the following amendment to the petition, admitted at the hearing of this- demurrer, to wit:

“And, further, plaintiff states that it had no knowledge or notice of the fraudulent conversion or sale of said bonds by said Thompson as aforesaid, and did not discover the same until after the failure of said bank, in May, 1894.” '

This is wholly insufficient to avoid the statute of limitations in an action for money had and received. Wood v. Carpenter, 101 U. S. 141; Foley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92; Moore v. Smelting Co., 80 Mo. 86; Hoffman v. Parry, 23 Mo. App. 20. The [603]*603demurrer is therefore sustained, with leave to plaintiff to amend its petition, if it so desires, on or before the 20th day of April, A. D. 1899.

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Bluebook (online)

93 F. 602, 1899 U.S. App. LEXIS 3006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/school-dist-of-sedalia-v-deweese-circtwdmo-1899.

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