The legislature created the state's liability by statute, and that liability, as a statutory creation, is contingent upon meeting inherent statutory time requirements. See, Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954). In similar vein, we held in Lick v. Dahl, 285 N.W.2d 594, at 600 (S.D. 1979): "The state has waived its right of sovereign immunity only to the extent provided by the express terms of these statutes."
South Dakota Insurance Code The terms "surety" and "surety insurance" both appear in the South Dakota Insurance Code SDCL ยง 58-1-1 ("This title shall be known as the Insurance Code "), SDCL ยง 58-1-2(10) ("'Insurer,' every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance,"), SDCL ยง 58-9-31 ("'Surety insurance' includes insurance guaranteeing the performance of contracts, other than insurance policies, and guaranteeing and executing bonds, undertakings, and contracts of suretyship "), SDCL ยง 58-21 ("Surety Insurance") While this Court recognizes that "[t]he headings of portions of a statute, such as articles, chapters and section may not be used to extend or restrict the language contained in a statute [,]" Deckert v Burns, 62 N W 2d 879, 881 (S D 1954), the Court will not disregard the clear presence of surety provisions within the insurance statutes Similar to the Dodge and Transamerica courts, supra, that found the inclusion of sureties within its states insurance statutes as a basis for its findings, this Court too finds the presence of sureties within the South Dakota Insurance Code to be reflective of the Legislature's intent to include sureties under the umbrella of insurance See Dodge, 778 P 2d at 1242 (explaining that "[o]ur statutes thus make clear our legislature's intent to include sureties within the coverage of the insurance statutes "), see Transamerica, 940 P 2d at 352 (noting that "[s]ection 10-1-102(8), 4A C R S (1994) defines the term 'insurer' as 'every person engaged as principal, indemnitor, surety, or contractor in the business of making contracts of insurance '") Further, South Dakota's definition of "insurer" is nearly identical to the definition of "insurer" cited in Transamerica Additionally, in Tracy vT &
She did not do so. This conclusion follows from our holding in [ Deckert v. Burns, 75 S.D. 229, 231, 62 N.W.2d 879, 880 (1954)]: "The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right." As in Deckert, we must distinguish between statutes of limitation and conditions inherent in purely statutory rights.
HB1090). In Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954), we held that the two-year provision of the Uniform Illegitimacy Law (now SDCL 25-8-9) was a condition which the law attaches to the right to maintain the action as distinguished from a technical statute of limitations. We also concluded in Deckert that by adopting the Uniform Act, the Legislature created a new, entire and complete act which superseded and repealed any then existing law upon the subject.
Consequently, to avoid the limitation, burden is on complainant to plead and prove one of the exceptions permitting the action to be brought more than two years after the child's birth. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959); People on Complaint of Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766 (1958); Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954). There was no common law right to determine paternity through action instituted by the illegitimate child's mother.
However, the general rule stated above is not, according to the majority of cases, applicable to statutes which create a new cause of action and in the same statutes limit the time for commencing suit thereunder. Langer v. Gray, 75 N.D. 1, 25 N.W.2d 89 (1946); Brown v. Box, 38 Ill.2d 80, 230 N.E.2d 204 (1967); Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964); Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959); Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954); 15 A.L.R.2d 491; 24 A.L.R.2d 1413. Many cases support the rule that:
Consequently, to avoid the limitation, burden is on complainant to plead and prove one of the exceptions permitting the action to be brought more than two years after the child's birth. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959); People on Complaint of Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766 (1958); Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954). There was no common law right to determine paternity through action instituted by the illegitimate child's mother.
Plaintiff quotes from Durante v. Consumers Filling Station Co. of Cheyenne, 71 Wyo. 271, 257 P.2d 347, 356, to the effect that this court may not disregard a plain and unequivocable requirement written into law by the legislature, emphasizing that it will not "read into our laws that which is not there," especially when to do so would offend against equity and good conscience, and accordingly concludes that ยง 14-91 does not provide when an action may be started judicially to establish paternity. Defendant responds that a statute which creates a new liability, gives an action unknown at common law to enforce it, and limits the time within which the action may be commenced is a statute of creation โ the commencement of the action within the time it fixes being an indispensable condition of the liability โ on the strength of Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 โ and further points to Impson v. State, 166 Okla. 246, 27 P.2d 359, and White v. State, 175 Okla. 522, 53 P.2d 675, as holding that a cause of action arising under the paternity statutes is a liability created by statute and is barred by the provisions limiting the time within which it may be brought if it is not commenced within the stated time. Defendant says that only two other courts have had occasion to direct their attention to the section of the Act with which we are concerned here, Deckert v. Burns, supra, and Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838, both of these cases, although considering questions of pleadings, indicating, that the section is indeed a limitation on the right to maintain a suit to establish paternity after the lapse of more than two years from the birth of a child unless that provision has been tolled by the conduct of the putative father.
The petition showed on its face that the child, F.D.R. Johns, Jr., was born on March 31, 1959, over four years prior to the institution of these proceedings. The appellant argues that the defense of limitations was properly raised on the motion to dismiss, on the ground that the statute itself imposes a limitation upon the right, and not merely upon the remedy, citing Deckert v. Burns, 62 N.W.2d 879 (S.D.), People v. Pennyfeather, 174 N.Y.S.2d 766, and Hernandez v. Anaya, 340 P.2d 838 (N.M.) construing somewhat similar statutes. Those cases may, perhaps, be distinguishable on the ground that our statute specifically refers to the time mentioned in the section as a period of limitations.
The burden is upon a complainant not only to allege but to prove facts tolling the statute. Schuerf v. Fowler, 2 A.D.2d 541, 156 N.Y.S.2d 859; People on Complaint of Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766; Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879. Therefore, assuming the facts alleged in the complaint to be true, the question is simply whether the money paid by appellant constitutes furnishing of support as contemplated by the statute.