| Wis. | May 15, 1895
The case turns upon the proper effect to be .given to tbe second exception to tbe running of tbe statute, contained in sec. 4231, R. S., namely: “ If after a cause of action shall bave accrued against any person be shall depart from and reside out of this state, tbe time of bis absence shall not be deemed or taken as any part of tbe time hmited for the commencement of such action.” Tbe statute is a very plain one, and effect should be given to it according to its natural and obvious meaning. It seems clear that mere absence from tbe state is not sufficient to create an exception or interrupt tbe course of tbe statute, but residence out of tbe state as well is essential; that is to say, a settled, fixed abode and intention to remain there permanently, at least for a time, for business or other purposes, is essential in order to constitute a residing without tbe state, within tbe meaning of tbe statute. This is in accordance with tbe great weight of authority in states where an exception to tbe statute exists to tbe same effect as in our own, in most of which it was considered and construed before it was adopted here. Collester v. Hailey, 6 Gray, 517; Langdon v. Doud, 6 Allen, 423; Gilman v. Cutts, 27 N. H. 348; Hall v. Nasmith, 28 Vt. 791" court="Vt." date_filed="1856-04-15" href="https://app.midpage.ai/document/hall-v-nasmith-6576017?utm_source=webapp" opinion_id="6576017">28 Vt. 791; Drew v. Drew, 37 Me. 389" court="Me." date_filed="1854-07-01" href="https://app.midpage.ai/document/drew-v-drew-4929607?utm_source=webapp" opinion_id="4929607">37 Me. 389; Wheeler v. Webster, 1 E. D. Smith, 1; Ford v. Babcock, 2 Sandf. 518" court="None" date_filed="1849-06-04" href="https://app.midpage.ai/document/ford-v-babcock-8357463?utm_source=webapp" opinion_id="8357463">2 Sandf. 518; Pells v. Snell, 130 Ill. 379" court="Ill." date_filed="1889-10-31" href="https://app.midpage.ai/document/pells-v-snell-6964166?utm_source=webapp" opinion_id="6964166">130 Ill. 379. In the case of Barney v. Oelrichs, 138 U.S. 529" court="SCOTUS" date_filed="1891-03-02" href="https://app.midpage.ai/document/barney-v-oelrichs-92977?utm_source=webapp" opinion_id="92977">138 U. S. 529, this exception was fully considered, and tbe principal authorities were cited in tbe opinion of Fuller, C. J., and with tbe result above stated. There is such a general concurrence of adjudicated cases on tbe point that tbe question must be considered as settled, and that tbe particular provision in question may fairly be said to bave been adopted Aere in view of tbe construction it bad already received elsewhere.
Tbe contention that tbe word “ and ” should be construed .as meaning “ or,” so that tbe exception would be if “ be shall •depart from or reside out of this state,” is wholly inadmissi
We hold, therefore, that, in order that the defendant may be said to have resided out of the state and in California, he' must have acquired a fixed and permanent abode or dwelling place there, for the time being at least.
It was contended that the defendant William Durant had made a payment of interest on the note within the period, of six years before the suit, at the direction of the defendant John Dwrcmt, but the evidence on that subject is not such that a verdict to that effect could be sustained. The-court should have directed a verdict in favor of the defend? ant John Durant, instead of one against him, and for this, misdirection the judgment of the circuit court must be reversed.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.