The opinion of the court was delivered by There are two preliminary objections to the consideration of the errors assigned for the reversal of the judgment appealed from. The first is, that the assignments of error made by the appellant in his petition are insufficient to entitle the cause to review. Five assignments of error are made. Four of them are, indeed, very informal, and unskillfully drawn, but we think the other is sufficient. The one we hold sufficient is: "The court erred in overruling the motion of plaintiff for a new trial."
This assignment is sufficient upon which to review the action of the court in overruling the motion made by the defendant below to set aside the report of the referee and grant him a new trial; and sufficient to entitle appellant to a consideration of the questions presented upon his claim that the amount assessed against him was too large; and that the findings of the referee were not sustained by sufficient evidence. (DaLee v. Blackburn, 11 Kan. 190; Shepard v. Haas Co., 14 Kan. 443.)
The case of the The Walter A. Wood Mowing and Reaping Companyv. Farnham, 1 Okla. 375, is not in conflict with the holding we now make on this question; and if it were we would not consider it in point here, for that case was determined under the Indiana practice, then in force, while this case arose, and must be determined, under the Kansas practice. In the case last cited from Kansas, the supreme court there refused to follow the Indiana decisions; and we do not think that they should be followed under our present practice.
The second objection is that the sufficiency of the evidence *Page 336 to sustain the report of the referee, and the amount recovered, as found by him, cannot be considered, because the evidence was not preserved by proper bill of exceptions signed by the referee. This objection cannot be sustained. The record shows that the defendant below did except, before the referee, to his findings of fact and conclusions of law, and that the referee returned with his report all the evidence in the case, and the case made shows that it contains all of the evidence taken in the case. It was sufficient to present the questions (now urged upon this court) to the trial court; and they were presented and passed upon, and we consider the record sufficient to present them here.
We pass, then, to the merits of the case.
It is claimed by the appellant that the findings of fact made by the referee show that the plaintiff's action was barred by the statute of limitations, and that judgment should have been in his favor upon this question.
The finding is that the note was made by John P. Jones to Daniel Richardson at Keytesville, Missouri, on the 13th day of May, 1876, and due one day after date; and endorsed to the plaintiff on February 24, 1882. There is no finding that any of the credits alleged to have been made by the deceased, Richardson, in his lifetime, or the written acknowledgments and promises to pay the same were ever made; but the referee found for the plaintiff on the theory that the defendant had not been in this Territory five years, so that the five years' statute of limitations in this Territory, barring actions on promises in writing, would have run at the time the action was brought, and that the burden of proof was upon the defendant to show that the action was barred by the statute of limitations of the state of Missouri, the state where the note was made; and as the defendant had *Page 337 not plead and proved the latter statute, the action was not barred.
Had the proposition been stated a little more broadly by the referee he would have been correct. Had he stated that the burden was upon the defendant to allege and prove that the statute of some other state or territory, where the deceased had resided before coming to this territory, had barred this action, he would have stated the law correctly. The findings show that the deceased, Daniel Richardson, became a resident of this territory in May, 1890. And we have already held, in the case of Schnell v. Jay, this volume, p. 157, following the case of Sohn v. Waterson, 17 Wallace, 596, that the statute of limitations does not begin to run against a cause of action until the cause comes under the operation of the statute; and under this rule the five years' statute here would not have barred this action; and if the action was barred at all it was by virtue of that provision of the statute of Nebraska, placed in force here by the Organic Act, which was the statute of limitations existing here at the time the defendant became a resident of the territory in May, 1890, and which provided:
"When a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title." (Nebraska Statute of 1889, p. 855.)
Under this statute, and it is the most favorable one of the different statutes we have had so far as the claims of the defendant are concerned, the cause of action against the deceased, Daniel Richardson, was not barred, unless it had been fully barred by the statutes of one of the states where he had formerly resided, and it was provided that it might be shown as a defense that this bar of the statute existed. We refer to the Nebraska statute *Page 338 alone, for we have seen that the limitation did not fully run after the deceased, Richardson, came to this Territory; and if the action was barred at all, it was because of this provision in the Nebraska statute quoted. And if it was not barred by this statute, it has not become so by any of the subsequent ones, for the Indiana statute, following the Nebraska statute, was no broader, and the Kansas statute, following the latter, is narrower, in its provisions in this respect than the former; and, also, if the cause of action was barred by the Nebraska statute, it could not have been revived by any of the subsequent ones.
It is not necessary, for a person to maintain an action in this Territory upon an obligation made elsewhere, that the person suing shall either allege or prove that the statute of limitation of some other state or territory did not bar the action before the defendant came here. It is only necessary that he shall show that the limitation of this Territory has not fully run.
The defendant claims that the presumption of law is that the statutes of other states upon a particular question are the same as ours, and that this presumption exists until it is alleged and proved to the contrary; and that, as our statute of limitation is five years, there being no allegation or proof to the contrary, the court will presume that the statutes of Missouri, of Kansas and of Oregon, on this question, were the same as ours. This proposition of law, asserted as an abstract proposition, is correct; but it is not applicable to the present case. The question here is, not whether the cause of action was barred by the limitation of this Territory, but whether it was barred by the statute of limitation of another state, which, being shown, would put the statute here into operation upon the particular case. That was *Page 339 the Nebraska statute, and the Nebraska statute made this a ground of defense to be shown by the party who claimed the bar in the former state to have existed. It is a substantive defense, the burden of which must be carried by the party resorting to it.
This question was raised in the case of Gillett v. Hill, 32 Iowa, 220, under the Iowa statute, which was identical in substance with the Nebraska statute in force here in 1890. The cause of action there sued on had originally arisen in New York, and concerning the matter, the court said:
"And it is by the laws of the state of New York that the sufficiency of the answer, as averring facts constituting a bar by the statute of limitation, is to be determined. In the absence of such averment in respect to the laws of New York, the answers are insufficient, for we cannot presume, for the purpose of creating a substantive defense, that such is the law of New York."
The conclusion reached, therefore, that the statute of limitation had not been shown by the defendant to have run against this cause of action before the deceased became a resident of Oklahoma, and that the Oklahoma statute had not barred the action, was correct.
It is strongly urged by the plaintiff in error that the proof shows that the cause of action was not kept alive by either payment or written acknowledgement of its existence, and while he lived elsewhere than in Oklahoma; but these contentions must all fall under the defect in his pleading, the pleading, as we have seen, not being good to support the first claim; and it is no better for the several others.
The next contention for a reversal of the judgment is that the referee allowed a large number of credits to the plaintiff upon his account as trustee, without proof of the same, which, being allowed, diminished the credit which *Page 340 should have been given upon the note sued on. These credits, as has been before stated, were for insurance, taxes, commissions and trustee fees, growing out of the administration of the trust arising from the Missouri property. The account was filed in court after the filing of the reply, and was not verified. There was no denial of its correctness by the defendant, but, even if it should be considered as filed as a part of the reply, the account being unverified by affidavit, its correctness was taken as disputed and denied; for our statute provides, with certain exceptions, which include the correctness of an account which is supported by affidavit, that all allegations of fact made in the reply shall be taken as denied. It was, therefore, incumbent upon the plaintiff, before he could be allowed these items, that he should prove their correctness. The evidence is all in the record, and as to most of these items there was not a scintilla of evidence offered. The referee should, therefore, have disallowed those not supported by any evidence; and as he took as a basis of his computation the amount of the balance which Mackay claimed by his statement to be due, and deducted from this amount only the sum of two hundred dollars which he found should have been allowed for the Missouri property, more than the plaintiff allowed, he necessarily charged the defendant with these various items which the plaintiff charged and failed to prove.
The motion for a new trial, on the ground that the assessment of the amount of recovery was too large, and that the findings were not supported by sufficient evidence, in this respect should have been sustained.
The judgment is reversed, with directions to grant a new trial at the cost of defendant in error.
McAtee, J., who presided in the court below, not sitting; all the other Justices concurring. *Page 341