Chemung Mining Co. v. Hanley

Citations

• 9 Idaho 786
• 77 P. 226
• 1904 Ida. LEXIS 100

Syllabus

<p>Amendment of Pleadings — Statute of Limitations — Judgment on Pleadings.</p> <p>1. Where the plaintiff’s attention is directed by demurrer or answer to the uncertainty, insufficiency or want of certain facts in his complaint, and he reposes and slumbers on his rights for a considerable period of time (in this case two years), without applying to the court or asking leave to amend in those respects, it is-not error for the court to refuse an application to amend at so late a date.</p> <p>2. The plea of the statute of limitations may be taken either by demurrer or answer — by demurrer if it clearly appears upon the faee of the complaint that the cause of action did not accrue within the statutory time, otherwise by answer.</p> <p>3. In this state the bar of the statute must be specially pleaded and cannot be raised by general demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>4. An allegation that a transaction occurred “on or about the first day of August, 1897,” and where charging a material and essential fact, is open to demurrer on ground of uncertainty, but. if not taken advantage of by demurrer will be deemed waived and proofs will be admissible to establish the real fact thus defectively-pleaded.</p> <p>5. Where a cause of action is stated and the answer pleads the bar of the statute of limitations, it is error to enter judgment in favor of defendant on the pleadings, even though it should appear to be barred, as shown on the face of the complaint.</p> <p>(Syllabus by the court.)</p>