
    The City of Phillipsburg v. James Kincaid.
    No. 120.
    
      Pleading — petition showing upon face aetionbarred by Statute of Limitations, demurrable. Where the petition shows upon its face that the plaintiff’s cause of action was barred by the Statute of Limitations at the time said action was begun, a demurrer thereto upon the ground that said petition does not state facts sufficient to constitute a cause of action should have been sustained.
    Error from Phillips District Court. Hon. A. C. T. Geiger, Judge.
    Opinion filed November 5, 1897.
    
      Reversed.
    
    
      R. F. Stinson, for plaintiff in error.
    
      N. B. McCormick, for defendant in error.
   Wells, J.

The only question in the case is, Does the petition state facts sufficient to constitute a cause of action against the defendant below, the plaintiff in error? The action was brought to recover damages for taking and retaining personal property. The petition alleges that the property was taken, November 15, 1891. This action was commenced in the court below, July 5, 1895. There is nothing stated in the petition sufficient to take the cause out of operation of the Statute of Limitations, and, under the provisions of paragraph 4095, General Statutes of 1889, the demurrer thereto should have been sustained. Walker v. Fleming, 37 Kan. 171; Parker v. Berry, 12 id. 351; Maxwell on Code Pleading, 91, 376; Bliss on Code Pleading, § 355.

The judgment of the court below is reversed, and that court directed to sustain the demurrer of the defendant to plaintiff’s petition and to take such further action in the case as may be necessary.  