Nelson v. Ellis

<p>APPEAL from District Court, Ada County.</p> <p>The first proposition raised by the answer, although not urged upon the trial, is that this action is barred by section 4054, subdivision 1, of the Eevised Statutes of the state of Idaho, which provides: “That an action upon a liability created by statute is barred within three jrears.” It is a universal and a well-established rule that a statute of limitation must be strictly construed. (Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152.) The section of our statute above cited refers to liability created by statute. The liability in this case and upon which this action is brought is not a statutory liability, but is a liability created and positively fixed by our constitution and is upon an instrument in writing. (Idaho Const., art. 18, secs. 7, 8; Placer Go. v. Dickerson, 45 Cal. 12; Victor Silver Min. Go. v. Crockwell, 3 Utah, 152, 1 Pae. 470, 1 West Coast Pep. 428. It follows, then, that if the statute of limitations runs at all against this claim, which we greatly doubt, it is governed by the provisions of section 4052 and would run five years. The next question that arises in this case is as to the eonclusiveness of a judgment against the principal as against the sureties. It is admitted in this case that the proceedings and allegations in regard to the suit, judgment, etc., set up in the-complaint herein are true, but defendants contend that the judgment is not admissible as against the sureties. We contend not only that the judgment is admissible but is prima facie evidence as against these defendants. (Stephens m Shafer, 48 Wis. 54, 3 N. W. 835, 33 Am. Eep. 793, and numerous cases therein cited.) The great weight of authority bears us out in our contention that each of the bondsmen are individually liable for the entire and full amount. They cannot take advantage of their failure to qualify in the full amount of the bond to defeat not only the object and purpose of the bond, but the intention of the sureties the