121 P. 553 | Idaho | 1912
The first contention made by appellant in this caso is that the court erred in finding and holding that
See. 4069 of the Rev. Codes provides as follows:
“If, when the cause of action accrues against a person, •he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.”
It is under the provisions of the foregoing statute that the trial court held that this action was not barred by the statute of limitations. Appellant contends, however, that under the provisions of an act of the legislature, approved March 13, 1907 (1907 Sess. Laws, p. 321), amending sec. 4144 of the Rev. Codes, providing the manner of serving process, a temporary absence, where the party still maintains his residence in the state, does not come within the purview of sec. 4069,
Appellant cites the following cases which at least tend to support his contention: Blodgett v. Utley, 4 Neb. 25; Garth v. Robards, 20 Mo. 524, 64 Am. Dec. 203; Quarles v. Bickford, 64 N. H. 425, 13 Atl. 642; Nunez v. Taylor, 91 Ky. 461, 16 S. W. 128; Buckley v. Jenkins, 10 Bush (Ky.), 21. The Nebraska case seems to be in point, but in Missouri the statute differed somewhat from ours, in that it provided that “if such person departs from and resides out of the state, the time of his absence shall not be deemed or taken as part of the time limited for the commencement of such action.’’ There it was held that the statute did not mean a temporary absence but a change of residence. The same provision seems to have been contained in the New Hampshire statute, while the Kentucky statute contemplates such an absence as amounts to ‘ ‘ obstructing the prosecution of the action, ’ ’ "and the court accordingly held that such absence must be a change of residence rather than a temporary absence.
A great many authorities are cited by respondent which support the conclusion and judgment of the trial court and are to the effect that any absence, whether temporary or permanent, or whatever the cause may have been, is sufficient to toll the statute and bring the case within the exception provided for by see. 4069, supra. The following are some of the authorities which support this contention: Lane v. Bank, 6 Kan. 74; Chicago etc. Ry. Co. v. Cook, 43 Kan. 83, 22 Pac. 988; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. ed. 316; Fisher v. Phelps, 21 Tex. 551; Phillips v. Holman, 26 Tex. 276; Bemis v. Ward, 37 Tex. Civ. App. 481, 84 S. W. 291; Rogers v. Hatch, 44 Cal. 280; Parker v. Kelly, 61 Wis. 552, 21 N. W. 539; 19 Am. & Eng. Ency. of Law, 234.
Our statute (sec. 4069) seems perfectly clear to us, and that the legislature did not have reference alone to a change
The appellant makes the further contention that the respondent herein was a nonresident of this state, and that he received the appointment as executor of the estate he represented under the laws of the state of Wisconsin; and that he had not received any appointment from a court of this state and could not therefore maintain his action in this state merely by virtue of his appointment as executor under the laws of another state. In support of this, counsel cites the following authorities, which seem to amply support his contention-. Dixon v. Ramsay, 7 U. S. 319, 2 L. ed. 453; Doe v. McFarland, 13 U. S. 151, 3 L. ed. 687; Kerr v. Moon, 22 U. S. 566, 6 L. ed. 161; Noonan v. Bradley, 76 U. S. 394, 19 L. ed. 757; Johnson v. Powers, 139 U. S. 156, 11 Sup. Ct. 525, 35 L. ed. 112; Fugate v. Moore, 86 Va. 1045, 19 Am.
In Valley Lumber Co. v. Driessel, 13 Ida. 672, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299, this court, dealing with the question of the capacity of the plaintiff to maintain its action as distinguished from the sufficiency of the facts
The failure of the appellant to raise the issue of respondent’s capacity to sue, either by demurrer or-answer, was a waiver of that objection, and it cannot now be raised for the first time on appeal. The judgment of the trial court should be affirmed, and it is so ordered. Costs awarded in favor of respondent.