Robinson v. Moore

1. Statute of Limitations. Absence from state. Code of 1892, \ 2748. Code of 1892, $ 2748, excepting from the operation of the statute of limitations the time during which the defendant was absent from and resident out of the state, applies where defendant has not been in the state at all as well as when the defendant resided here at the time the cause of action accrued and subsequently removed. 2. Same. Foreign statutes. Code of 1892, § 2754. Code of 1892, $ 2754, providing that causes of action barred by the laws of other states or countries where they accrued, or where the defendants resided before coming to this state, shall be barred here, does not apply if the defendant has never resided in this state.

From the circuit court of Noxubee county. Hon. G. B. Huddleston, Judge. The facts are stated in the opinion of the court. In order to a correct conclusion in the construction of the statute involved, it is necessary to examine carefully the language of all the statutes on the subject: Hutch, code, p. 827, clause 12; code of 1871, §2157; code of 1880, §§2684, 2748; code 1892, § 2754. In the discussion of this case we really have no sort of concern with clause 12, Hutch, code, p. 827, with § 2157 code of 1871, or with §2678, code 1880, or with §2748, code of 1892, but it is proper to consider these sections and the cases on them in order to correctly determine the trend of the court of last resort of this state, and also the changes made by the legislature, so that a proper conclusion may be reached as to the causes of the changes in the statute. Clause 12, p. 827 Hutch, code,, has been the subject of consideration by this court but once, and that is in an opinion by Chief Justice Sharkey in the case of Estes v. Rcmlins, 5 How. (Miss.), 258. This opinion was based on what the court calls * ‘ the broad and unequivocal enactment ’ ’ itself. The argument was made in that case by Judge Daniel Mayes that the word “return ” in the latter clause of the statute shows that it could only apply to a person who had gone out of the state, inasmuch as no one could return to a place unless he had once been in it. Judge Sharkey holds that the statute applies to defendants who never had been in the state as well as to those who had been in and gone out of the state, and he says that the word ‘ ‘ return ’ ’ is the only thing favoring a different construction, and there could be no good reason for allowing that to control and limit the unmistakable terms of the statute itself. It will be noted that statute distinctly provides that the limitation cannot be set up by any one against whom there is a cause of action who shall be out of the state at the time it accrued or during the time of such action. It is plain that this statute and the judicial construction of it cannot have any reference whatever or throw any sort of light upon the matter now before the court. The next statute which appears is § 2157 of the code of 1871, being the only section in that code on the subject, and this section has been judicially construed to apply to cases where the defendant was a nonresident at the time the cause of action' accrued. The court will note that in neither one of these statutes is there anything said about the cause of action accruing ‘ ‘ in this state. ’ ’ Some of the cases construing this section will be found in 50 Miss., 267; 51 Miss., 291; 53 Miss., 511, and 62 Miss., 763. The decisions, it is clear, shed no light on the cause at bar. We ask attention to the wording of this section, 2157. It seems to confine itself to the time when any cause of action accrues and after any cause of action accrues, and does not in either case contain the words £ £ in this state, ’ ’ and the code of 1871 is absolutely silent as to the matters involved in § 2754 of the code of 1892. Section 2748 of the code of 1892 puts in the words ££ in this state,” which nowhere appear in any precedent statute, and provides that if after the cause of action accrues in this state the defendant shall be absent from and reside out of the state, the time of absence shall be deducted after his return. This section, as we have before stated, is precisely the same as § 2678 of the code of 1880, and has been repeatedly construed by the supreme court, as will be seen by Judge Campbell’s motes to that section of the code of 1880, and also in 60 Miss., 832, and 66 Miss., 239. In the case of Lindenmeyer v. Gunst, 70 Miss., 693, the supreme court construed §2678 of the code of 1880, and held that it was only where the right of action accrues in this state and the person goes from and resides out of the state, that the section applied to prevent the running of the statute of limitation. This decision is extremely significant in support of the words £ 1 in this state ’ ’ meaning where a person was in this state, could be sued, and then went out of it, and Judge Campbell said: “It applies only where a cause of action accrues in this state and the person against whom it has accrued goes from and resides out of the state. ” It cannot be imagined why the words £ £ in this state ’ ’ should be added upon any other basis. A cause of action accrues to any person anywhere in the world who holds the claim when it is due. It would accrue to a man in this state or any other state or country. Our position is that the whole scope of the statute shows that the words of the statute, £ £ in this state, ’ ’ have reference to the cause of action which may be sued on and the party found in this state. If this is not the true view, what can be the sense of § 2754 of the code of 1892, which is the same as § 2684 of the code of 1880, which speaks of a cause of action accruing in some other state, arid also speaks of a cause of action accruing in this state, where the defendant has resided before he resided in this state. The whole scope of it shows-that the serious modifications of the statute from that of Hutchinson’s code are made in consonance with the uniform tendency of the courts to a liberal construction of the statutes of limitation! in favor of the repose of society and to give anyone exemption where he is exempted by the law of the state in which he lives. ■ Now, §2754 appears for the first time in the code of 1880, and is the precise statute upon which we rely in the case-at bar, and means what it says—that no person against whom a cause of action has accrued in some other state by the law of which the action is barred, can be sued in this state. This section has undergone consideration in the supreme court but once, and that is in the case of Railroad Go. v. Pool, 72 Miss., 487, in which case an action was brought for an ox killed by the company, and the company set up the statute of limitation of Alabama of six months, and this court held, Judge Campbell delivering the opinion, that the section had in view the case of a nonresident protected by the bar of the statute of limitation of the state where he resided, who afterwards came into this state, and we insist that the court seems to take it for-granted that but for the fact that the railroad company resided in both states, the Alabama law would prevail. We ask special attention to the case of State v. Purlong¿ 60 Miss., 846. It will be noted that this case was construing § 2678 of the code of 1880, which is the same as § 2748 of the code of 1892, and does not touch the section on which we rely, but is quite significant in determining the construction of the section on which we base our defense. The Furlong case held that the absentee, in order to have the-benefit of the statute of limitation, must reside out of the state, and have no residence here, and leave no means hereof proper service on him, and this after there was a cause of action against him which might at one time have been enforced. against him by proper process in this state, because, the court suggested, if any other was the intent of the legislature, the creditor would have to sue, and may by catching him £ £ on the wing. ’ ’ It seems to us impossible to examine the law under Hutchinson’s code and that under the code of 1871 and that under the code of 1892, and fail to see that § 2754, annotated code of 1892, was enacted with the particular view of covering a case where a man might be sued in another state where he had a residence and is protected by the laws of that state. If this be not true, we fail to perceive any reason for the enactment of § 2754 of the code of 1892, because every other conceivable state of case would be covered by the other act. The growth of the law in judicial decisions has been uniformly towards a liberal construction of Statutes of limitation in favor of the repose of society. "A very lucid and cogent opinion on the subject is to be found in Hyman v. Bayne, 83 111., 256, which we ask this court to examine. We also call attention to Wernse v. Hall, 101 111., 423; Sloan v. Waugh, 18 Iowa, 234; Pitohell v. Hopkins, 19 Iowa, 531. Solely under the adjudications, it ought not to be held that a citizen of Tennessee could sue a citizen of Mississippi in Tennessee, which citizen had a residence in Mississippi, where the cause of action accrued, and continuously for ten to twelve years thereafter. The appellant in the case at bar had a fixed residence in the State of Tennessee, where the debt was contracted, and the creditor knew he could always find the appellant in that state and sue him there, but failed to do so until the bar of the statute of limitation of Tennessee attached. If the bar is not complete, it is difficult to see why, and if the bar is complete, by the lapse of the statutory time in Tennessee, it would never become barred, and there might occur the monstrosity, as developed in the case of Putnam v. Dike, 79 Mass., 535, where there was recovery of a debt with forty years’ interest on it, a situation commented upon in several cases as a curiosity of jurisprudence. The question is, whether or not a citizen of Tennessee can successfully plead the statute of limitations of Mississippi, on a Mississippi contract, against a citizen of Mississippi, when he has never been within the state, or within reach of the process of its courts % On principle and in reason, to ask the question is to answer it in the negative. Had Robinson been a citizen of Mississippi, and absent from the state only half the time, he could not have availed himself of the statute. Shall a nonresident and a stranger be granted rights and privileges under our law which are denied to our own citizens ? This point has been expressly decided by our court in Kenna/rd v. Alston, 62 Miss., 763. In that case suit was brought against a nonresident in 1884, upon a judgment rendered in New York in 1872. The defendant pleaded the statute of limitations. Code 1880, § 2675, provided that “all actions founded on any judgment or decree rendered by any court of record without this state, shall be brought within seven years after the rendition of such judgment or decree, and not after.” To this the plaintiff replied that the defendant had been a nonresident continually since the rendition of said judgment, and absent from the state. The question raised in that case, was, therefore, on all fours with the point now under consideration. There is absolute identity between the point raised there and the point now being discussed. In that case our court held that “the statute of limitations never began to run in favor the defendant in this case, because he never came into the state.” In my judgment this case is conclusive of the question. It clearly distinguishes the cases of Maitland v. Keith, 30 Miss., and Clements v. Brown, 31 Miss., for the reason that when those cases were decided, by the express terms of the statute then in force, the exception of nonresidence did not apply. The court was clearly right in that position, and I shall content myself, in relying upon that opinion, to distinguish those two cases from the case at bar. In this case, as in that, counsel for appellant rely upon Maitland v. Keith, and Clements v. Brown, at least they did in the lower court, but they are clearly inapplicable, and our court has already so held. Notwithstanding the case of Kennard v. Alston, appellant contends that §2748, code 1892, creating the exception for absence, does not apply to him because he has been and is a nonresident. To support this contention they rely upon Pin-dell v. Harris, 57 Miss., 739, and Lindenmayer y. Gunst, 70 Ih., 693, and some changes in the verbiage of the statutes, which I will notice at the proper time. In Pindell v. Harris, the court say: “The clause [the exception for absence] refers to those who, residing here when the right of action accrues, shall thereafter remove elsewhere.5 ’ And upon this statement appellant bases his claim that the exception does not apply to one who has never resided here, and, consequently, has never removed elsewhere. There are several complete answers to this contention. In the first place, the language quoted is an obiter dictum. In that case the facts were that, at the time the statute began to run, Mrs. Harris resided in Mississippi, and continued so to reside for four and one-half years. She then moved to Memphis. Later she returned to Mississippi,' and remained fifteen and one-half months. She then returned to Memphis. The two periods of time spent in Mississippi aggregated five years, nine and one-half months. While living in Memphis she spent from three to five months on a visit to Mississippi. If this time counted, the statute protected her; if not, it did not. The only question before the court was whether or not it counted. There was no occasion for the court to consider or pass upon the point whether or not the exception for absence applied to those who had never been present, and 1 have no idea that they intended to announce a rule upon that proposition. Construing the language of the court in the light of the facts and the question presented, it seems clear that they did not so intend; and if they did, the ruling was not authority because it was obiter. In the second place, the case of Kennard v. Alston, supra, is later by several years. The exact point is there presented and expressly decided upon the interpretation of a statute identical with the one now in force. Lindenmayer v. Gunst, supra, is equally inapplicable. It is true the language is rather broad, as in Pindell v. Harris, but an analysis of the case shows that its decision rested upon an entirely different process of reasoning. That was an action of ejectment brought by Lindenmayer et al. against Gunst, a tenant of certain lands owned by Payne, a nonresident of this state. Payne was admitted to defend, and pleaded title by adverse possession for ten years. Plaintiff admitted the possession but replied that Payne had been a nonresident during that time, and absent from the state, and consequently that the statute did not run in his favor. Of course it was clear that the title of Payne had been perfected by the statute, for the reason that the plaintiffs, during the whole time, had never been denied their right to sue. Our court has always held that the reason of the exception is, that the plaintiff cannot sue, and that if the right to sue remained unimpaired, notwithstanding the absence, the case does not fall within the exception. French v. Davis, 38 Miss., 218. The court expressly rests its decision upon the fact that Lindenmayer could have brought his action against the' tenant and thus' prevented the bar of the statute. The case at bar rests upon a wholly different basis. Kennard v. Alston is the only case in which our court has expressly passed upon this point, and that decision has never been questioned. It not only announces the law, but the law announced is entirely consonant with reason and justice. Appellant further contends that the use of the words £ £ after his return,” in the statute, show it is not intended to apply to nonresidents. But it has been uniformly held that the words quoted apply to the coming into the state of one domiciled abroad, as well as to the return of an absent citizen. Bus well on Lim. & Adv. Poss., sec. 117. Not only is that the general rule, but it has, by express decision, been the law of this state for about sixty years. In 1840 our court held that the word “return” in a similar statute applied to coming into the state of a nonresident, as well as to the return of a citizen, and that the use of that word did not exclude nonresidents from the operation of the statute. The language of the opinion delivered by Sharkey, C. J., applies so well to the case at bar that I quote the following: “The reason and justice of the enactment apply as well to those who have never been in the state at all as to those who have not been in it since the cause of action accrued. It was evidently intended that the remedy should not be barred until there had been ample time and opportunity to enforce it, under the laws of the state. Until the defendant came within the jurisdiction of our courts, there was no such opportunity. The only remedy in this case was by personal action, that did not exist until the defendant was subject to the jurisdiction óf the state courts, and, of course, it could not be barred until it had an existence.” Estis v. Rawlings, 5 How. (Miss.), 258. This has been the accepted law of the state since 1840, or, at least, I have been unable to find any other case in which the point has been raised. Yet, after six years of repose, appellant unearths the proposition with which he makes the attempt to defeat the payment of a just debt. Section 2157, code 1871, contains two clauses. The first is omitted in the codes of 1880 and of 1892, the latter being brought forward. Appellant contends that the omission of this first clause shows that the legislature did not intend that the exception for absence should apply to nonresident citizens of other states. This position is untenable for two reasons. First, the code, 1880, for the first time introduced § 2684, providing that actions accrued and barred in another state shall not be maintained against persons removing into this state. The first clause of § 2157, code 1871, could not be brought forward because it would conflict with this new provision, and this is probably the cause of its being dropped. An examination of the sections will show the conflict. Another conclusive reason why appellant’s position is untenable, is that our court has passed upon the construction of § 2678, code 1880, which is the second clause of § 2157, code 1871, and has held that the section, after the omission of the first clause, as it stands in the codes of 1880 and 1892, applies as well to citizens of other states as to absent citizens of this state. Kennard v. Alston, supra.