establishing that acknowledgment of debt after statute of limitations had run could revive debt against the statute
How later courts described this case
- establishing that acknowledgment of debt after statute of limitations had run could revive debt against the statute
- reviewing the various opinions of this Court determining when a judgment or order is final
Written by the judges who cited it.
The opinion
LARSON, Justice
(concurring).
I concur in the solution arrived at by Mr. Justice WOLFE and in the order made. I have doubt, however, that the statute of limitations can run against the State in a tax case. I do not think that section 104-2-31, R. S. Utah 1933, has such effect. It is apparent that article 3 of chapter 2 of title 104 has to do with limitations in actions to enforce civil rights as between private parties. Section 104-2-31 then declares in effect that in actions brought in the name of, or for the benefit of, the State, the limitations shall apply in the same manner as to actions by private parties. I opine that this means that when the State stands in a position where, were it a private party, the statute could be pleaded, it may also be set up against the State. But in those positions where a private party could not be, those matters which involve and go to the very existence or maintenance of the life of the sovereign, the State itself, it may not be met with a plea of limitations. Has the State consented — yea, can the State consent — that an individual may raise the plea against the very existence of the government itself, and by statute of limitations cause the State to die, to cease to exist?
I also doubt that a tax, levied by a statute, as this one, is a “liability created by statute” as that term is used in section 104-2-26, R. S. 1933, being section 6468, Comp. Laws Utah 1917. And assuming that the statute of limitations will run against the State, does it commence to run thirty days from the time the gas is sold or from the date of filing the report showing the sales and the tax due? This question was indi
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cated by Mr. Justice WOLFE and for the reason stated in his opinion properly left unanswered.
Without entering into a discussion of the matter, I call attention to the rather peculiar provisions of section 80-10-1, R. S. 1983, as follows:
“Every tax
has the effect of a judgment against the person, and
every lien credited by this title
has the force and effect of an execution duly levied against all personal property of the delinquent. The
judgment is not satisfied nor the lien removed until the taxes are paid or the property sold
for the payment thereof.”
Since under the opinion of Mr. Justice WOLFE, we make no final rulings on the issues pending the determination by the district court of the questions or matters indicated in that opinion, I make no comment as to the possible effect of the section last quoted on the tax involved in this case, nor do I express an opinion as to whether the statute of limitations could have run in favor of defendants on any theory of the case. I simply raise the questions, so the trial court— should it finally determine that the facts are such that the action must be construed as a straight action to collect a tax under Theory 1 set forth in the opinion of Mr. Justice WOLFE — may make a complete determination of the question as to whether the one year statute of limitations could defeat the action.