76 Ind. App. 401 | Ind. Ct. App. | 1921
This is a 'claim by appellant against the estate of William Bretthauer, an absentee. The facts as found by the court are in substance as follows: In May, 1915, a petition was filed in the probate court for the appointment of an administrator for the estate of William Bretthauer, wherein it was alleged that on and prior to February 15, 1910, said Bretthauer was a resident of the city of Indianapolis; that on said date he absented himself therefrom and went to parts unknown, and has since remained absent and unheard from. On June 23, 1915, the court found and decreed that said Bretthauer was and had been since February 15, 1910, an absentee, and that an administrator should be appointed for his estate. A few days later the last will and testament of said absentee was probated and appellee appointed administrator with the will annexed. Appellant’s claim was filed April 28, 1916. Prior to 1898, Bretthauer had boarded and lodged with appellant’s father in the city of Indianapolis and was boarding and lodging with him when the latter moved from
The court concluded as a matter of law that appellant was not entitled to a recovery. Is appellant’s claim barred by reason of the six-year statute of limitations? If it is, this cause must be affirmed, but if it is not so barred then it must be reversed. Section 294 Burns 1914, §292 R. S. 1881 provides that actions on accounts . and contracts not in writing “shall be commenced within six years after the cause of action has accrued, and not afterward.” Section 298 Burns 1914, §296 R. S. 1881 provides that any person being under legal disabilities when the cause of action accrues, may bring the action within two years after the disability is removed. The phrase “under legal disabilities” as used in this section is defined in §1356 Burns 1914, §1285 R. S. 1881 to include persons within the age of twenty-one years, or of unsound mind, or imprisoned in the state prison, or out. of the United States. Section 299 Bums 1914, §297 R. S. 1881 provides that the time during which the defendant is a nonresident of the state or is absent on public business shall not be computed in any of the periods of limitation, and §300 Burns 1914, §298 R. S. 1881 provides that if any person entitled to bring or liable to any action, shall die before thé expiration of
It thus appears that under certain conditions the statute of limitations does not bar the action although it is not commenced within the period fixed by the statute. But as said by the court in Bauserman v. Blunt (1893), 147 U. S. 647, 657, 37 L. Ed. 316, 320: “In the absence of express statute or controlling adjudication to the contrary, two general rules are well settled. 1st. When the statute of limitations has once begun to run, its operation is not suspended by a subsequent disability to sue, * * *. 2d. The bar of the statute cannot be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or to preserve his claim.”
In Amy v. Watertown (1889), 130 U. S. 320, 32 L. Ed. 953, the plaintiff in his complaint attempted to avoid the statute upon the theory that all the officers of the city upon whom service could have been had had entered into a conspiracy with each other and with the citizens of the city to resign and did resign so as to prevent service of process. Plaintiff’s contention was that the commencement of an action on his part would have been useless. The court after stating the several exceptions to the operation of the statute, such as the absence of the defendant from the state, said: “The
“From this brief review it appears that concealment of fraud has by many courts been considered good ground for suspending the statute of limitations, even in actions at law. But this is a very different thing from attempting to avoid service of process, and cannot be cited as aiding in any way the adoption of such a rule in the latter case. Concealment of fraud prevents a party from knowing that he has been injured and has a cause of action. He cannot take any steps to obtain redress. But when a party knows that he has a cause of action,-it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim, or instituting such proceedings as the law regards sufficient to preserve it.
“There is one class of cases which is excluded from the operation of the statute by act of law itself, of which • the case in which Mr. Justice Strong made the remark referred to is one. This class embraces those cases in which no action can be brought át all, either for want
“ Inability to serve process on a defendant has never been deemed an excuse for not commencing an action within the prescribed period.” And after referring to the fact that the statute of Wisconsin provides that the statute shall not continue to run while the defendant is out of the state, it is said: “That statute, therefore, has expressly provided for the case of inability to serve ■process occasioned by the defendant’s absence from the State. It has provided for no other case of inability to make service. If this’ is an omission, the courts cannot
Jackson v. Fidelity & Casualty Co. (1896), 75 Fed. 359 was an action on a contract of indemnity, one provision of which was that no suit should be brought to recover any loss insured by the contract, unless the same was commenced within twelve months after discovery of cause of action. The court after holding that limitation of the time of bringing suit in contracts of insurance are not to be applied with the same degree of rigidity as statutes of limitations, said: “Where the performance of conditions precedent are, without fault or laches of the insured, rendered impossible by the acts of the insurer, or even by act of God or of the government or of the courts, such limitations are not to be applied.”
In Devereaux v. City of Brownsville (1887), 29 Fed. 742, the legislature had repealed the charter of the city and later reorganized the territory into a “taxing district,” during which time there was no organization that could be sued. The statutory period for commencing the action expired during this period. The court held
In Broadfoot v. Fayetteville (1899), 124 N. C. 478, 70 Am. St. 610, after calling attention to the authorities holding that when the statute once begins to run no subsequent happening or event can obstruct its course, and that when the legislature has provided certain exceptions when the statute should not run, the courts cannot add exceptions to those named by the legislature, it is said: “But we are satisfied that when
In Hall v. Brennan (1892), 64 Hun 394, 19 N. Y. Supp. 623, the maker of a note died in 1887, but letters testamentary were not issued to his executors until 1889, owing to a contest of probate of his will. It was there held that the intervening time was to be excluded in computing the running of the statute of limitations, under a statute providing for the exclusion of time during which action is stayed by “statutory prohibition.” The inability to bring suit in that time being in effect a statutory prohibition. Lieberman v. First Nat. Bank (1900), 2 Pennewill (Del.) 416, 82 Am. St. 414, 45 Atl. 901 was a suit against a surety on the bond of a bank teller. The question was what effect did the fraud of the principal in concealing the cause of action have on the statute of limitations. In holding that conceal
“On the other side, it is said, the statute must be expounded reasonably, so as to suppress and not to extend the mischiefs it was intended to cure; that it was intended to suppress fraud by preventing unjust claims from starting up, after a great lapse of time, when evidence by which they might be repelled was forgotten or had ceased to exist; that it should not, therefore, be so construed as to encourage fraud by enabling those who, through falsehood or deceit, have managed to keep one in ignorance of the fact that he had a cause of action, to take advantage of their own wrong doing under a plea of the statute.
“ ‘We think,’ says the Court, in Reynolds v. Hennesy, 23 Atl. 639 (R. I.), ‘the latter position is best sustained by reason and authority. It certainly is in the line of justice and morality. The only objection to it is that it introduces an exception into the statute.’ The same objection lies to claims in favor of the Government and to cases of new promise. The statute does not take away the debt, but simply affects the remedy. Hence,
“Such a construction has been so frequently applied to the statute that it is now said to have the weight of authority in its favor.”
In Brown v. Rollins (1863), 44 N. H. 446, where the debtor left the state and went to California leaving his wife and child upon his homestead farm in New Hampshire, and remained there without returning for eleven years, it was held that the time he was absent was to be-excluded in the computation of time within which an action should be commenced. In Ward v. Cole (1855), 32 N. H. 452, the debtor left the state with his family on a voyage at sea, expecting to be absent three years, leaving his property in the care of his father-in-law, but never returned, having died before the expiration of the three years, it was held that his -absence was such' as to prevent the statute running. In Gilman v. Cults (1851), 23 N. H. 376, it is held that a debtor need not resort to attachment, and the fact that a non-resident debtor has property in the state does not affect the running of the statute. The debtor had been absent from the state several times for a number of months at a time and it was held that the statute ceased to run during each and all of the absences, if they were such that legal, service could not be had. In State v. Furlong (1883), 60 Miss. 839, the defendant was a bachelor and never
Let us now turn our attention to the situation in which appellant is placed. The facts in this case are peculiar. The statute began to run against her claim' in April, 1908. Bretthauer, as the court finds, disappeared from his last- and usual place of residence in 1910, and went to parts unknown, and has ever since remained absent, unheard from, and his whereabouts unknown. In June, 1915, proceedings were instituted for the purpose of having him declared an absentee and having an administrator appointed for his estate, alleging his disappearance and that he had left an estate which was suffering for want of attention. The probate court found the facts as alleged, and fixed the date of his disappearance as February 15, 1910.
six-year period, such a condition arose as prevented her from bringing an action to enforce the collection of her claim. Suppose that appellant had been indebted to the absentee on a promissory note which was five years past due when, the latter disappeared in 1910, so that at the time when the executor in this case was or could have been first appointed, the note had been due for more than ten years, could the appellant have successfully pleaded the ten-year statute as a bar, when under the facts as found, there was no one who could have brought suit on the note? The absentee is presumed to have been dead, but since, he is only presumptively dead, no administrator could have been appointed within the ten-year period allowed by the statute within which to have commenced an action on the note. Since there was no person who could be sued during the five years immediately following the disappearance of Bretthauer, we hold that the statute of limitations did not run from the time when he first disappeared to the time when an administrator of his estate could under the law have been appointed.
The judgment is, therefore, reversed with directions to the court to restate its conclusions of law in harmony with this opinion and to render judgment in accordance therewith.