French v. Davis

| Miss. | Oct 15, 1859

Hakdy, J.,

delivered the opinion of the court.

The defendant in error brought this action against the plaintiff in error, on two promissory notes of his intestate, each due on the 1st January, 1850. The defendant below filed an answer of general denial, and on tbe trial relied on the Statute of Limitations of six years as a defence, the action having been instituted on the 1st December, 1856. The verdict and judgment being for the plaintiff, the defendant brings the case here, upon exceptions taken to the rulings of the court upon the trial.

The first error assigned is, that the amount of the judgment exceeds the damages claimed in the complaint. The conclusion of the complaint is as follows. Yet the said defendant has not paid the said sums of money, &c., “ to the damage of the plaintiff two hundred dollars, and therefore plaintiff sues, and frays judgment for the amount of said notes, with interest,” &c.

This action was brought under the Statute of 1850, changing the forms of pleadings at common law; which provided that the “ complaint,” thereby authorized instead of a declaration, should “ conclude with a demand of the relief” which the plaintiff claims. This complaint conforms to this provision, and the statement of damage in the conclusion, is to be regarded as surplusage, since there was a demand of'judgment for the amount of the notes stated in the preceding part of the complaint.

The second and third errors assigned, apply to the rulings of the court upon the defence of the Statute of Limitations. And the first question presented on that point is, whether, the action being against an administrator, it was not barred by the 12th section of the Act of 1844, unless brought within four years and nine months after the grant of letters of administration to the defendant ? Hutch. Code, 831.

It has been settled by this court, that that section of the statute, applies only to claims upon which the plaintiff had a cause of action, at or before the death of the decedent. Bingaman v. Robertson, 25 Miss. 501" court="Miss." date_filed="1853-04-15" href="https://app.midpage.ai/document/bingaman-v-robertson-8256503?utm_source=webapp" opinion_id="8256503">25 Miss. 501; Pope v. Bowman, 27 Ib. 194. In this case, it does not appear, by the bill of exceptions now before us, that the cause of action existed against the intestate in his lifetime. We cannot, therefore, judicially take notice that the action accrued to the plaintiff in the lifetime of the intestate; and hence the case cannot be considered as within the provisions of this section of the statute.

The second question presented is, whether the period of. the absence of the administrator from this State, is to be deducted from the time of the running of the statute, under the provision of the llth section of the Statute of 1844, considered in connection with the Statute of 21st October, 1852, chap. 56. The latter statute provides, that in case an administrator of an estate within this State resides beyond the limits of this State, so that the ordinary process of law cannot be served upon him, the plaintiff in any suit at law against the estate, may obtain an order of publication against such non-resident administrator, to be published in a newspaper; and that upon proof of the publication, as authorized by the statute, “ the same shall be held and deemed good and sufficient service upon such non-resident administrator or executor, and the plaintiff (may) proceed to judgment as in other cases.”

The reason on which the exception of the time of the defendant’s absence from the State, from the running of the statute, depends, is, that during such absence the plaintiff has been prevented from pursuing his remedy to recover his debt, and in order to protect the rights of the plaintiff when his failure to sue has been occasioned by the act of the defendant. But still the policy of statutes of limitation is to promote diligence, and to discountenance delays in bringing suits, and to allow no indulgence to the failure of parties to bring their actions, except where their right to do so has been prevented by the conduct of the defendant, or certain disabilities of the parties suing. Hence, if the right to sue be, according to the due course of law, open and available to the plaintiff, so as to enable him effectually to assert his right by suit, he will not be excused for his failure to sue, and will not be entitled to the benefit of an alleged exception to the time of the running of the statute.

It is clear that the Statute of 1852, provided a mode by which the plaintiff could prosecute his suit, notwithstanding the absence of the defendant from the State. It enabled the plaintiff to sue and obtain his judgment against the administrator, to be levied of the assets of the estate in his hands, as effectually as he could have done if the administrator had been in this State, and personally served with process. The absence or non-residence of the defendant was, therefore, no impediment to his suing; and the reason upon which the exception of absence in the llth section of the Act of 1844 is founded, is removed by the Act of 1852, and rendered inapplicable to the case of a non-resident administrator.

It is objected against this view of the statute, that a judgment rendered upon such notice as is authorized by the first section of the act, would only authorize a sale of the property of the decedent in this State, subject to it; and would not be such a judgment as would be the foundation of proceedings for a devastavit, or other personal liability of the administrator. But the force of this objection is not admitted. The notice to the administrator authorized by the statute, stands upon the same principle of any other mode of constructive notice which the legislature may establish; such as leaving copies of process at the residence of a defendant, publication in chancery suits, &c., which lay the foundation of personal liability, and personal judgments, against the parties affected by such notices. It is but a mode of service of process which the legislature has authorized; to have the same effect both upon the property of the estate to be subjected to the judgment, and upon the personal liability of the administrator, in case he violates his duty as administrator, to the injury of the plaintiff. The administrator can have no just ground of complaint that such a proceeding has been taken against him; for it will be occasioned by his own neglect or violation of duty, and will be a matter of necessity frequently, in order to compel him to the discharge of his trust. Without such a mode of proceeding, he would have it in his power to defeat the rights of parties interested in the estate, and to baffle all legal responsibility. The provision of the statute authorizing the notice appears, therefore, to he just and expedient.

Hence, we are of opinion that the Act of 1852 authorized suit to be brought in this case, notwithstanding the non-residence of the administrator; and, therefore, that the period of his absence from this State, should not have been deducted from the time' of the running of the statute. Consequently, the first instruction given for the plaintiff is erroneous.

The judgment is reversed, and the cause remanded for a new trial.

Smith, C. J., dissented.