Adams v. Kelly

2 Wash. Terr. 263 | Wash. Terr. | 1884

Opinion by

S. C. Wingard, Associate Justice.

John Kelly, John Gilchrist, and Drank Henderson brought suit in the District Court, Second District, holding terms at Yakima, City, against M. N. Adams, on a certain promissory note executed by said Adams in the State of California, whilst all the parties were residents of California.

The defendant answering the complaint, set up Sec. 337 of the Code of California, as follows: “ That the Statute of Limitations of the State of California is as follows, to wit: The periods prescribed for the commencement of actions other than* for the recovery of real property are as follows: Sec. 337. Within four years : an action upon any contract, obligation, or-liability founded upon an instrument in writing executed in this State ” ; and further alleged that the cause of action set forth in the complaint accrued more than four years before the commencement of this action, and cannot be maintained under the-law of California, by reason of the lapse of time.

The note was in words and figures following:

$330.00. Staten Island, March 1, 1877.

On the 1st day of October, 1877, without grace, I promise-to pay to the order of Kelly, Henderson & Gilchrist, three hundred and thirty dollars, with interest at the rate of one per cent, per month, from date, until paid; principal and interest payable only in gold coin of the Government of the United States* for value received. M. N. Adams.

The plaintiffs replied inter alia, that the defendant left the State of California before four years had elapsed from the making of said note, or from the time the same became due, and became a resident of Yakima County, W. T., and has never since returned to the State of California, but is now a resident, of Washington Territory; that defendant’s whereabouts was not known to plaintiffs after leaving said State, until within about eighteen months from the commencement of their action against him; that said note is riot barred by the Statute of Limitations of the State of Califoz-nia, on account of defendant’s-absence therefrom, before four years had elapsed from the time-said note became due as afoi’esaid.

The action was commenced July 14,1888.

A jury was waived, and the cause was tried by the Court upon the pleadings and the evidence. “ The Court found (so the transcript states) the defendant liable upon said promissory" note, and rendered judgment,” etc.

The plaintiffs in error pleaded a single section of the Statute of California only. This was new matter, and is expressly denied by the reply of the plaintiff below.

Section 46 of the Code of this Territory cannot be invoked to aid the plaintiff in error, because he was no longer a nonresident, but had resided here almost from the date at which the note becazne due.

The venue was transitory, the remedy could be sought, azzcl was sought, and found here.

Six years had ziot elapsed from the time the action accrued until suit was brought in the Court below.

The action was not barz’ed by any Statute of Limitations.

No assignment of errors was znade by the plaintiff herein,, and the cause was heard by agreement of parties and consent of the Court upon the sole question as to the sufficiency of the pleadings and evidence to support the fizidings of the District Court.

The judgment of the Court below is affirzned.

We concur Roger S. Greene, Chief Justice.

George Turner, Associate Justice.