Show UNIQUE lA VI POINT UP FOR DECISION Does Statute of Limitation Run When Whim Demurrer Has Been Sustained WILL CREATE PRECEDENT I FINDING OF DISTRICT COURT CERTAIN TO BE APPEALED Raising the point that the action netlon is debarred through the tha operation of the statute of limitations even though the suit was brought within the required time attorneys for the Oregon Short Line Railroad company yesterday un uncovered Uncovered covered a legal problem which has been passed upon in some of the states of the Union though it had never arisen in the courts s of Utah The ques question question question tion was raised before Judge George G Armstrong by George H Smith of the Short Line in the suit of Mabel Y Held and others against the railroad com corn company company pany in which 15 OO damages are sought The suit was filed In the tite district court courton on June 29 1909 more than a year after the accident On July 9 attorneys for forthe forthe forthe the railroad company filed a demurrer to the complaint on the grounds that the facts alleged were not sufficient to state a good cause cau o of action actton The de tie demurrer demurrer Vi was as not called up by the plain plaintiffs plaintiffs tiffs until February 2 of this year On February 26 the demurrer was sustained and thirty days additional time was granted by the court to amend am nd the com corn complaint complaint plaint The amended complaint was filed flIed on March 28 and it was attacked yesterday by attorneys for the Short Line who vho insisted that the action was debarred by the statute statu e of limitations Julge Julga Armstrong gave each ench side un until Until untIl til May lay 10 to submit briefs upon which he will make his ruling a ruling which will set a precedent in Utah and which will vill almost certainly go to the supreme court of the state for final determination tion The first complaint was filed within the statutory time after the accident hut there were omissions of some essen essential essential points to which the tho attorneys for forthe forthe forthe the railroad company demurred But the demurrer was allowed to go without contest from July 1909 until February y 1910 and during that time the statute of limitations had run as it was more than two years from February after the accident occurred With the sustaining su of the demurrer by Judge Armstrong the case was Wa placed as if it if had never been filed flied ac according ac according according cording to general practices and the amended complaint therefore was the only thing that could be taken into consideration in the case But by the time the amended complaint had been filed the tho statute of limitations liml had run fUn Its course and the attorneys for the railroad company claim that it any action in this case Problem for Court This was the point raised yesterday by Attorney Smith for the railroad company and it was an interesting one for the tho other attorneys in the court courtroom courtroom courtroom room In making his argument for the dismissal o of the action Attorney Smith declared that this practice had been outlined In many of the supreme courts of the states in the Union He declared the point had been b n ruled upon by the supreme courts of nineteen states and ind that fourteen of the nineteen held that the claimant was estopped from suing for damages by the statute of limita limitations claiming the default before the amended complaint was filed The oth other other othor er or four ruled that the claimant still had hada a standing through the tha filing of the action in n the th first place and that the action eUon was not estopped Even fl if this case cue is not taken to the supreme court of the state the point will go up for final decision of f the high highest hl highest h est court of this state within a short I time Ume said a prominent attorney in discussing the matter last night We will win have to get a ruling from our su supreme supreme supreme preme court on tHa point Here is a hypothetical cue case Suppose Judge Armstrong should the demurrer and nd that damages of 10 toO flOO had been allowed allow d Then suppose the railroad company had appealed to the supreme court of the state citing clUng errors among which was that the de tie demurrer d had not been sustained You Tou know it takes at least leWt a year at the shortest for an appeal to the S court co rt and a decision d iston In any state Well suppose tie the supreme court ruled that th Judge Armstrong had erred in not sus sue taming the demurrer and od remanded the case for a new trial You can see that at this rate it is certain that the statute of limitations would have run its course In remand ing the case for a new trial and holding that the demurrer should have been b n sustained it la Is certain that an amend amended ed complaint would have had hajj to be filed Then In that case the action would be barred because of the statute of limitations You Youcan can ean see the effect |