APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed.
Mr. T. G. McKesson, for Appellant.
Mr. H. S. McCluskey, for Appellee.
[54 Ariz. 209] LOCKWOOD, J.
Newton John Berry, hereinafter called plaintiff, brought suit against Acacia Mutual Life Association, a corporation, hereinafter called defendant, seeking to recover on a certain insurance policy. The defendant demurred on the ground that the complaint did not state a cause of action, and the demurrer being sustained and plaintiff electing to stand on the complaint, judgment was entered for defendant, whereupon plaintiff appealed. We reversed the case, stating that the complaint set up a good cause of action as against the defendant, and remanded it to the trial court with instructions to overrule the general demurrer, and for such other proceedings as were [54 Ariz. 210] advisable. 49 Ariz. 413, 67 P.2d 478. The general demurrer was overruled by the trial court, in accordance with the opinion of this court, and subsequent thereto defendant filed several additional pleadings attacking the complaint. Among these were a special demurrer on the ground of subd. 3 of sec. 2061, Revised Code of 1928; a plea in bar based on the same subdivision; various other special pleas and defenses, which we need not now specify,
and an answer admitting the execution of the policy in question at defendant's home office in Washington, D.C., on or about June 1, 1930, and denying all the other allegations of the complaint. The plaintiff moved to strike the amended pleadings filed by the defendant, which motion was denied, and the case was tried before the court sitting without a jury. Various findings of fact and conclusions of law were made, and a judgment rendered thereon in favor of plaintiff, whereupon this appeal was taken.
There are a number of interesting points raised by the many assignments of error made by defendant and the cross assignments interposed by plaintiff, but we think we need consider only two questions of law. First, did the court err in denying plaintiff's motion to strike the new defenses interposed at the second trial of the case, and second, if such action was not error, does the statute of limitations bar plaintiff's action.
So far as the first question is concerned, under the long established practice of this court, the lower court did not err in permitting defendant to set up the various defenses raised by it for the first time at the second trial. We think this is conclusively settled by the cases of Perrin v. Mallory Com. Co., 8 Ariz. 404, 76 P. 476; State v. Smith, 43 Ariz. 131, 29 P.2d 718, 92 A.L.R. 168, State v. Smith, 43 Ariz. 343, 31 P.2d 102, 92 A.L.R. 173, Senate Silver Mining Co. v. Hackberry Consol. Mining Co., 24 Ariz. 481, [54 Ariz. 211] 211 P. 564, and Boyle v. Webb, (Ariz.) 94 P.2d 642 (just decided but not yet reported [in State Reports]).
We come then to the question of whether the record shows that the plea of the statute of limitations should have been sustained. Section 2061, Revised Code of 1928, reads, so far as material, as follows:
"There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, the following actions: ... 3. upon a judgment or decree of any court rendered without this state, or upon an instrument in writing executed without this state." (Italics ours.)
While the first sentence of section 2062, Revised Code of 1928, is in this language:
"Actions for debt where the indebtedness is evidenced by or founded upon a contract in writing, executed within this state, shall be commenced and prosecuted within six years after the cause of action has accrued and not afterward." (Italics ours.)
This action was commenced more than four, and less than six, years after the cause of action accrued.
The question then is whether the insurance policy upon which this action is based was "executed" within or without the state of Arizona. If the former, section 2062, supra, applies and the action is not barred by the statute. If the latter, subd. 3 of sec. 2061, supra, governs the situation, and the plea of limitations should have been sustained.
The facts upon which we must determine this question are not in serious dispute, and may be stated as follows. On April 21, 1930, plaintiff made a written application to defendant for the policy in question. After setting up various ...