French v. Davis

1. Pleading : practice : averment op damages under pleading act op 1850. —An averment of tlie amount of damages claimed by the plaintiff, is unnecessary in an action to recover a debt, under the Pleading Act of 1850, and if made in the complaint, is surplusage ; and hence, if the judgment exceeds the damages claimed in the complaint, it will be no ground for reversal. 2. Executor and administrator: statute op limitations: 12th section op act op 1844. — The twelfth section of the Limitation Act of 1844 (Hutch. Dig. 831), which limits actions against executors and administrators to the period of four years and nine months after their appointment and qualification, applies only to suits where the cause of action accrued within the lifetime of the decedent. See Bingaman v. Robertson, 25 Miss. R. 501; Pope v. Bowman, 27 Id. 194. 3. Statute op limitations : exception op absence prom the state. — The reason of the exception of the time of the defendant’s absence from the State, from the period limited for the bringing of suits, is, that during such absence, the plaintiff is prevented from pursuing his remedy to recover his debt: if, therefore, the plaintiff’s right to sue be unimpaired, notwithstanding such absence, he will not be entitled to the benefit of the exception. 4. Same : same : act 21sf October, 1852: executor and administrator.— The Act of the 21st October, 1852 (Session Laws, ch. 56), which provides, that where an administrator of an estate within this State, resides beyond the limits of the State, so that the ordinary process of law cannot be served on him, notice of suits at law against him may be served by publication in a newspaper; furnishes parties having claims against a decedent’s estate, a full and ample remedy for their collection, notwithstanding the absence of the administrator: and hence, the running of the Statute of Limitations in favor of the administrator, will not be affected by his absence from the State. Smith, 0. J., dissented.

Error to the Circuit Court of Franklin county. Hon. Stanhope Posey, judge. On the 1st day of December, 1856, Davis sued French as administrator, on two notes of his intestate, both due 1st January, 1850. The conclusion of the complaint, after averring the refusal to pay the money, proceeds as follows: “ To the plaintiff, damage two hundred dollars. Wherefore he prays judgment for the amount of said notes and interest,” &c. The defendant pleaded a general denial, and relied on the Statute of Limitations. On the trial, the plaintiff read the notes, and an order of the Probate Court, showing that, on the 9th June, 1851, letters of administration were granted, on the estate of intestate, to defendant' and to Mrs. French, and that they qualified on that day. Plaintiff then called one Dyrd, and asked him whether defendant had been absent from the State after said grant of letters; and if so, how long ? Defendant objected to the question, because that, under the Act of 1852, authorizing absent administrators to be sued, the proposed evidence was irrelevant. The court overruled the objection, and witness proved that defendant left the State in the forepart of 1854, and resided out of it for about two or three years ; and defendant excepted. This was all the proof. The court charged the jury for plaintiff; that if defendant was absent from the State, since the cause of action accrued, the time of his absence, and also the period of nine months, are to be deducted from the limitation of four years. For defendant, the court charged, 1. That if six years and nine months had elapsed after the notes became due, before suit, they must find for defendant. 2. If the suit was not brought within four years and nine months after defendant was appointed administrator, they must find for defendant. 3. That absence from the State is only to be calculated, where the creditor has no opportunity of suing by reason of such absence, and the time of such absence must be proved. There was a judgment and verdict for the plaintiff for f223; and the defendant sued out this writ of error. This was a suit began 1st December, 1856, on two notes, both due 1st and 4th January, 1850. The damages were laid at $200, and verdict and judgment are for $223 96, an excess over the sum claimed. For this cause, the judgment is erroneous, and must be reversed, as this court has held in a case under the Pleading Act of 1850. Sestee v. Barnett, 4 Geo. 584. The point in controversy was upon the Statute of Limitations. • The note was past due,' near seven years, when sued on. To show a right of recovery, plaintiff produced a probate transcript, showing the grant of letters on the estate of the maker of the notes, on the 9th of June, 1851. These letters were granted jointly to plaintiff .in error, and to Mrs. French; and plaintiff’s proof shows they both qualified on that day. Mrs. French is not sued, and there is no suggestion as to her. The legal presumption therefore is, that she is still living, and administratrix of the estate with plaintiff in error. It is not shown that she has ever been absent from this State. It was proved that plaintiff in error was absent from the State, and ■resided out of it “ for about two or three years,” from the forepart of the year 1854. This proof, as to absence, was objected to by plaintiff in error, but admitted, and he excepted. This was all the proof. The court charged for the plaintiff below, that if defendant was absent from the State, since the cause of action accrued, the time of his absence and the period of nine months, are to be deducted from the limitation of four years. By the 12th section of .the Act of, 1844, no such action could be brought against an administrator, “ after the expiration of four years” from the time of his qualification ; and'such a claim was to be “ deemed to have been paid and discharged.” The section contained a saving clause in case of disability of plaintiff. Hutch. 831. If this act applies to the case, the claims were barred, and the'charge given for plaintiffs below is wrong. To avoid the bar, an attempt is made to bring in a previous section — the 11th — of the Act of 1844. It excepts the time of absence, but seems to be limited in its operation, specially to the limitations declared “in the preceding sections of this act.” Hutch. 831. The Act of 1822 contains the same peculiarity. Ib. 827, §§ 12, 13. Here, then, is the eleventh section of the Act of 1844, which declares that the period of absence shall not be computed in the cases specified in the preceding sections; and the question is, whether, being thus specially restricted, it applies to a case specified in a subsequent section, to wit, the 12th section ? It would seem not; and especially so, because a new and different rule is declared for the cases within the subsequent section, — “ the cause of action is to be deemed as paid and dischargedwhereas the previous sections affect only the remedy. This construction is greatly strengthened by the fact, that this 12th section contains a special saving clause, applicable to itself only, and does not include any saving in case of the absence of the debtor. If this view be incorrect, and if a like rule is to be applied to every section of the statute, it remains for others to explain why this marked peculiarity was adopted in the Act of 1822, and continued in the Act of 1844. Again; by the first section of the Act of 21st October, 1852, it is provided that in case of the absence of an administrator, any creditor of the estate may sue in a circuit court and have publication against him; and' the same shall be deemed “ good and sufficient service,” and plaintiff may thereon proceed to judgment “as in other cases.” See Pamphlet Acts, called Session; 1852, p. 86, § 1. If this act applies, the suit is barred; and why should it not ? The Act of 1844 was intended to apply to cases where, because of the absence, no service of process could be had; and hence, actions for the recovery of lands are excepted from the eleventh section. In this case, after the Act of 1852, the creditor had no cause to delay; the absence of the administrator did not tend to prevent or delay suit; and his judgment recovered on. publication, would.have the same effect against the estate, in this State, as if recovered on process executed. It is no answer to say, it does not appear that there was any estate here. If the estate was elsewhere, it was incumbent on the creditor to sue there, and absence from this State could not affect such suit. This suit is intended to reach property here, and we must so regard it. If we listened to suggestions of no property, here, we never would apply a statute bar,'for our courts apply them only to prevent judgment and execution here. For the same reason, all suggestions that a judgment, ón publication, would not be operative elsewhere, must be disregarded. In addition to this, it appears that Mrs. French was administra-trix, and there is no pretence that she was absent; or that suit could not have been brought against her, as representative of the estate. Judgment against her, alone, would have bound the estate. 4 Geo. 559. Suit might therefore have been brought against the estate; and the fact that one of the representatives was absent, was wholly immaterial. No time can be deducted on that account. If this Act of 1852 controls, the objection to proof of absence was improperly overruled. But the whole question seems properly to arise on the instruction to which we have referred. That instruction is further erroneous in this, that it seems to allow the jury to couple periods of absence, when but one absence could he deducted. It is true, there were two previous verdicts against plaintiff in error; but under our decisions, the cause may still be heard, upon improper charges and admissions of evidence. . The action was commenced December 1st, 1856, on notes falling due 1st and 4th January, 1850; letters of administration granted 9th of June, 1851. The date of the appointment and qualification of the administrator having been shown, the plaintiff offered to prove, that in 1854, the defendant left the State, and was absent two or three years, in Louisiana. To this evidence the defendant objected, but the court overruled the objection, and the evidence being admitted, the defendant excepted. The instruction, and the admission of this evidence, alone present the questions to be decided. It is not shown by the evidence, that the notes fell due in the lifetime of the intestate. The fact that he died after the cause of action accrued, is material to the defence under the Statute of Limitations, if four years from the grant of administration, and it was for the defendant to put himself within the terms of the statute. Bingaman v. Mobertson, 25 Miss. 501; Pope v. Bowman, 26 lb. 194. It is not by the proof, shown to be a cause of action existing against Robert French, the intestate, in his lifetime. The court cannot infer that a fact exists, necessary to give effect to the Statute of Limitations. . • The instruction given for the plaintiff, propounded the law correctly. The plaintiff was entitled to the four years, exclusive of the nine months, during which the right to sue is suspended by statute; and we fix the time when the statute commenced running, at nine months after the grant of letters. It is then to run four years, and if during that time the defendant is absent from the State, the time of such absence is to be deducted. 18 S. & M. 394. The statutory disability to sue, is an exception to all statutes of limitation. 24 Miss. R. 249. It not appearing in the bill of exceptions, which set out all the evidence, that the cause of action existed in the lifetime of the intestate, the case stood under the general law; about which no possible doubt could exist, as to the correctness of the instructions and the admission of the evidence. Nor do we conceive that there can be a doubt of the correctness of the ruling, on any view of the case. The Act of 1852 was stated by the defendant’s counsel, to furnish the objection to- evidence of the absence of the defendant. This objection is founded on an erroneous view of the scope and effect of that act. The second section is unconstitutional, clearly, so far as it authorizes a personal judgment against the absent administrator. There can be no jurisdiction without a person or a thing to act on. The only ground upon which a suit 'on publication could be effectual as a remedy, would be the existence, at the time it is commenced, of property to which it might attach. The effect of the Act of 1852, if it is valid, is to give to proceedings against nonresident executors and administrators, the effect of proceedings in rem, as to the estate in our jurisdiction, and is therefore no more than the remedy by attachment, which is not considered as affecting the exception in the Statute of Limitations. A judgment without notice, except by publication, would not be available as evidence against the administrator in any proceedings to establish a devas-tavit. It might authorize the sale of property of the estate found in this State, but its operation is limited, and therefore it is, that the more ample remedy, founded on personal notice (which is prevented by absence), is entitled to the exception. It does not appear that the administrator left assets in this State, or that there was any property to give jurisdiction in o'em.