Finney v. Speed

1. Appeal. Limitation. Plea. Disability; removal of. Where the proceedings in a cause show that a party is non compos mentis, and he appeals from a decree therein, a plea of the -statute of limitations, in bar of the appeal, is not good, which fails to aver subsequent removal of the disability, and the lapse of the requisite period after such removal, before suit. 2. Same. Appeal by guardian of non compos. Limitation. An appeal by the guardian or next friend of a person of unsound mind is within the saving of the statute of limitations. Such appeal is that of the non compos mentis, though taken by his representative.

From the chancery court of "Warren county. Hon. Upton M. Youns, Chancellor. A decree was rendered in this case in the court below on May 13,1879, directing the sale of certain lands for partition. The lands were sold, pursuant thereto, July 7, and, on November 5, 1879, a decree was rendered, confirming the sale. On July 17, 1893, W. D. Finney, one of the defendants in said cause, by F. W. Little, as guardian and next friend, filed a petition, averring that at the time of the rendition of said decree of sale, and the confirmation thereof, he was and still is insane, and he prayed and obtained an appeal. Said appeal was perfected, and a transcript of the record was filed herein and errors were'assigned. Thereupon, the appellees filed the following plea in bar of said appeal: “Now comes the said appellees, by counsel, and for answer to appellee’s assignment of errors, say that the appellant ought not to have or maintain his appeal herein, because they say that the final decree appealed from was rendered May 13, 1879, and the appeal therefrom was not taken within two years next after.” The appellant demurred to this plea, assigning for cause its insufficiency in law, in this, that the bill and the decree appealed from showed that at the time of the institution of the suit, and when the decree was rendered, the appellant, Finney, was non compos mentis, and it is not averred that his disability had been removed. The statute gives the person non compos mentis three years after the removal of disability in which to appeal. It cannot be successfully contended that he cannot appeal before it is removed, yet tliis is practically the ai’gument of adverse counsel. It is true, the appeal is taken by next friend, but still it is by Finney. Persons non compos mentis are special objects of the consideration and guardianship of the courts, and their rights will be considered and protected whenever brought to attention. 1. Assuming that the statute of limitations in force at the time the decree was rendered applies, the case is governed by §§ 2156, 2161, code 1871. There is no natural right saving from the statute of limitations those under disability. The saving arises only from an express statutory provision. In the absence of such, the statute would run against all persons. Buswell on Lim., §§ 104, 106. It runs against an insane person whether judicially determined such or not. lb., §§ 103, 106. Statutes creating disabilities are strictly construed. Ib., §104. As this court, in Butler v. Craig, 27 Miss., 628, affirming Robinson v. Alford, 13 Smed. & M., 509, said, it has long been the settled doctrine that no equitable exceptions are to be engi’afted upon the statute of limitations, and that when there is no express exception the court cannot create one. Conceding that the guardian could have appealed within three years, the statute confers no right on any one to appeal after the lapse of that timé except the person himself who is under disability. I cannot see how the saving in the statute applies to any other person than the lunatic. This is not an appeal by him, but by one purporting to be his guardian and next friend. 2. But, if the appeal had been by the alleged lunatic in person, he would not have brought himself within the terms of the statute, unless the appeal was taken after the disability was removed. In McLemore v. Railroad Co., 58 Miss., 514, under tire statute providing that decrees should be binding on infant defendants, unless, on being served with process, they should, within six months .after attaining majority, show cause to the contrary, it was said that if the infant wishes to make a new defense, he must, in general, wait until he has attained majoritybut that, if he wishes to impeach the decree on the ground of fraud, collusion or error, he may proceed at once by original bill. The court further said: “We dissent from the view that he who purchases under a decree for the sale of the real estate of an infant, where the statute makes a saving in his favor, is a purchaser pendente lite, and bound by any decree rendered in a subsequent controversy between the original parties. After the decree for sale or conveyance, the suit is no longer pending. The decree is final in form and in effect, but subject to the right of the infant, after he attains to the age of twenty-one years, to impeach it by a proceeding instituted by him for that purpose.” The language here quoted is applicable to this case in its present attitude, as illustrative of the justice of compelling a person under disability to proceed formally, so that the rights of third persons may be protected. The evident purpose of the statute in providing that a person under disability shall have three years was to give such person a day in court when he would be capable of taking care of his own interest. The plea presents a bar, and should be replied to.