*1 Tubbs, v. Davis Myers, S.D. N.W. materials, recovery for cases, justify In such owner. passed title has it thereto must be found & Produce Creamery v. Mandan Kopald Electric Co. determ trial court must is supra. question This claim, other plaintiff’s ine. are no services included There engineering. than $300 necessary, being so
A reversal for a retrial issue, pass- we have not may determine the contractual court was valid. lien assignment plaintiff’s ed on the from reversed. judgment appealed All the Judges LEEDOM, J.,
RICE, Judge, sitting disquali- Circuit fied. SHAFER, BUSBY, Respondent Appellant B.
BERT SHAFER, BUSBY, Appellant Respondent MARJORIE (66 910) N. W.2d (File 1954) Opinion filed Nos. 9458-9460. November *2 City, Rapid for Defendant and Lynn, & Whiting, Wilson Appellant. , City, Rapid Re- for Plaintiffs and Costello,
Hanley & spondents. brought
ROBERTS, J. These actions were to recover injuries damages persons property to in sustained in public highway Pennington collision which occurred on a County, August Dakota, 21, 1946, South on auto- between of mobiles nonresidents. The two actions were not com- April 3, process menced until when of was pursuant made to statute, the nonresident motorist service provides operation 33.0809. SDC That statute that the upon highways motor vehicle of this state a nonresident equivalent appointment be deemed shall to an of the secre- tary attorney upon of to be his true and lawful may process any against growing be served him out operation resulting per- of such of a motor vehicle in loss to property operation signi- son or and such shall be deemed agreement any against may fication of his that him legal validity be so served and have the same force and as if upon personally. served him interposed
Defendant
the defense
statute of
prior
limitations had run
commencement of the actions.
Supp.
prescribes
three-year
SDC
33.0232
limitation on an
personal injury
six-year
and limitation on an ac-
injury
personal property.
Supp.
pro-
tion for
to
SDC
33.0203
against any
vides: “If when the cause of action shall accrue
person
state,
he shall be out of the
such action
com-
be
respectively
menced within the terms herein
limited after
person
state;
the return of such
into this
and if after such
depart
accrued,
cause of action shall have
shall
of
reside out
the time of his absence shall
limited for
time
any
of the
part
not be deemed or taken as
action;
provided
the commencement of such
for the
to an action
apply
section shall not
visions
the foreclosure
any
mortgage, or to
real estate
foreclosure
Defendant
advertisement.”
mortgage by
real
estate
accrued,
when the actions
within the state
temporarily
was
and has since continued
a week left the state
but within
Arizona. The trial court concluded
reside
the state
the time of defend-
of the
meaning
of the causes
from the state since the accrual
ant’s absence
Defendant
of the statute.
running
suspended
of action
ruling.
reversal of this
asking a
appeals
*3
run
tolling 'the
The intent of these provisions
prevent
of limitations is to
ning of the statute
from the
merely by absenting himself
defeating
just
claim
him and
thereby prevent
process upon
state and
for the com
the full
of limitation
give plaintiff
period
un
policy
of his action. A court
look to the
mencement
place
interpretation
a statute and
on it a reasonable
derlying
rather
than defeat
accomplish
purpose
will best
literally
though
language.
it even
not
within its
Read
298,
County,
269. Recognizing
Jerauld
70 S.D.
17 N.W.2d
Swafford,
construction,
rule of
in Froelich v.
this court
476,
893,
35,
479,
party
35 S.D.
said:
“Where a
has,
in the
through
complete
courts
remedy
wrong
for the redress of a
or the
adequate
remedy the enforcement of which is un-
right
tection of a
—a
by the
from such state of the one against
affected
absence
not,
he
his
to relief —such absence does
makes
claim
33.0203], supra,
[SDC
extend the time with-
under section 69
an action to enforce his
bring
rights”.
in which he must
generally
Decisions in other states are
to the effect
remedy
complete
and unaffected
party
that when the
the defendant from the state a
stat
by the absence of
Am.Jur.,
34
Limitations
Ac
application.
ute is without
C.J.S.,
Actions,
212;
tions,
221;
Limitations of
see num
54
§
in
431 the the arising provision out motor accidents within resided as if he makes the defendant as amenable to nullifying any the state and has the effect of v. McMinn suspending of limitations. Arrowood period 566, County, 562, 855; 121 119 A.L.R. 173 Tenn. S.W.2d 643, 70; Coombs v. 116 166 A. v. Death Darling, Conn. Scorza Cir., Holthaus, erage, 660; 8 208 F.2d Kokenge 243 Iowa 571, 711; 600, 52 Dairy N.W.2d v. Tuell 250 Peters Ala. 344; Richardson, 504, 35 So.2d Nelson v. Ill.App. N. 17; 76, Rosenfield, E.2d Reed v. Vt. A.2d see also Annotation in page 17 A.L.R.2d at record,
Under the by facts disclosed the actions were barred the statute of limitations.
Accordingly, judgments are reversed.
SMITH, J., LEEDOM, JJ., P. and SICKEL and RUDOLPH, J., dissents.
RUDOLPH, J., (dissenting). our decision Following in the of Raymond Barnard, case 28 N.W.2d enacted single exception to the rule provided by SDC 33.0203. Ch. Laws 1949. ma- jority opinion now writes into the statute another exception. is my It view that such usurps legislative func- “* * * * *4 tion: express exceptions made, where are legal presumption is that did not intend to save other cases from the operation of the statute. In case, the inference is a one strong that no other ex- ceptions intended, were and the rule generally applied that an exception ain statute applied is exception a statute amounts to an affirmation application * * provisions to all other cases not excepted, Am. Jur., Statutes,