Meyer v. School District No. 31

Citations

• 4 S.D. 420
• 57 N.W. 68
• 1893 S.D. LEXIS 87

Syllabus

<p>1. By the provisions of Section 4833, Comp. Laws, the defense of the statute of limitations can only be taken by answer, and, when so pleaded, it is deemed denied without a reply, under Section 4933, Id. A motion, therefore, to dismiss the action on the ground that it is barred by the statute cannot be made until the trial is concluded, as up to that time the plaintiff has the right to introduce any legal evidence tending to show that the action is not barred by the statute.</p> <p>2. A school district order, regular upon its face, is prima fiacie binding and legal. Its apparent validity may be impeached by showing that the school officers were not properly authorized to execute it, but that is a matter of defense.</p> <p>3. A school district order was drawn upon its treasurer, and was on the same day indorsed “Not paid for want of funds.” On the same day the payee named in the order signed the following memorandum on the back of the same, with the knowledge and consent of the school district officers: “Por value received, the payment hereof is extended for five years from date, conditioned that interest be paid annually.” Held, that the payee or assignee could only take advantage of the condition; and, held, further, that notwithstanding the interest was not paid, the statute of .limitations did not commence to run until the expiration of five years from the date of the order.</p> <p>4. Only the ultimate or issuable facts should be alleged in a pleading. An ultimate or issuable fact is one essential to the claim or defense, and which cannot be stricken from the pleading without leaving it insufficient. The evidence by which such ultimate or issuable fact is to be proven need not be alleged.</p> <p>(Syllabus by the Court.</p>