Hendricks v. Kellog

76 So. 746 | Miss. | 1917

Ethridge, J.

delivered the opinion of the court.

On the 9th day of March, 1909, Rachel Hendricks, of Yazoo City, Miss., executed two promissory notes to Mrs. Mary R. Miles, one for three hundred seventy-eight dollars and eighty cents,' payable one year after date, and one for two hundred thirty-four dollars and thirty-nine cents, payable two years after date, securing these notes by a deed of trust on property situated in Yazoo City, Miss. In the year 1913 Rachel Hendricks accompanied her niece to California., seeking to improve the health of her niece, but returned to Yazoo City in the fall of that year. This trip required considerable money and Rachel Hendricks incurred other indebtedness, securing the same with a deed of trust upon her homestead. In April, 1914, Rachel Hendricks, having an opportunity to secure a position in° California at better wages than she could get in Mississippi, moved to Pasadena, Cal., and secured- employment as a servant with a lady in that city. She remained in California from April, 1914, until the date of hearing of this suit, but claims that she did not surrender or abandon her residence in Mississippi, but left her house in Yazoo City in charge of her sister and her husband and family.. In July, 1916, the executor of Mrs. Mary Miles, deceased, having qualified as executor'directed the trustee in the deeds of trust to secure, the notes above mentioned to proceed to sell the property to pay the debts. Rachel Hendricks, through her attorneys, sued out an injunction against the sale of said property, claiming that the first note above given had become barred by the statute of limitations, and before suit tendered to the trustee the amount of the second note secured by the deed of trust, with interest, in full settlement of her demands, which the trustee refused to accept, and the said money was paid into the chancery court with the filing of the bill for an injunction.

It is claimed in the bill that the statute of limitation had run against the first note, that it constituted no claim against the homestead. There was a motion filed to dissolve the injunction, and on this motion affidavits of various parties were filed, relatives mainly of Rachel Hendricks, which undertook to state that the sister of Rachel Hendricks occupied her residence as members of her family; and by reason of this contention it is claimed that process could have been served in Yazoo City upon Rachel Hendricks, and her absence did not suspend the running of the statutes of limitation of this state, under the provisions of section 3108, Code of 1906 (section 2472 Hemingway’s Code).

In the deposition of Rachel Hendricks she was interrogated as to her stay in California, the nature of her employment, and the length of time she expected to remain. In answer she said that she eonld not answer how long she expected to remain; that her employer was Mrs. C. B. Boothe, 1515 Garfield avenue, South Pasadena, Cal. She was then asked, “State where has been your usual place of abode during the last two years,” and answered,"At Mrs. C. B. Boothe’s.”

On the hearing the chancellor dissolved the injunction and granted an appeal to settle the principles of the case.

Section 3108, Code of 1906 (section 2472, Hemingway’s Code) is as follows:

“Absence from the State. — If, after any cause of action have accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after his return.”

Under this statute we are called upon to. determine whether the phrase “be absent from and reside out of the state’’.shall apply to the facts of appellant’s living out of the state temporarily under the circumstances stated, she intending to return to Mississippi when she has earned enough to pay off the indebtedness upon her property.

Our statutes upon, the service of process provide three methods of serving process upon a defendant, any one of which will confer jurisdiction upon the court to render a personal judgment. Section 3926, Code of 1906 (section 2933, Hemingway’s Code), is as follows:

“How Summons Executed. — The summons from every court shall be served in one of the following modes:

“First. — Upon the defendant personally, if to be found in the county, by handing him a true copy of the process.

“Second. — If the defendant cannot himself be found in the county, then by leaving a true copy of the process at his usual place of abode, with his wife or some other person above tbe age of sixteen years, being one of his family, and willing to receive such copy.

“Third. — If the defendant cannot himself be found, and if no person of his family aged sixteen years can be found at his usual place of abode, who is willing to receive such copy, then by posting a true copy on a door of the defendant’s usual place of abode.”

Can it be said that the sister of the appellant, who is a married woman having a husband and children of her own, constitutes a member of the appellant’s family within the meaning of said section? And if not, is the house of the appellant in Yazoo City, occupied by her sister and husband under the circumstances stated, the “usual place of abode” at which a copy of summons may be posted? '

We do not think the sister of appellant, having a husband and children, is a member of appellant’s family in the sense contemplated by the statute in reference to whether this house of appellant in Yazoo City, occupied by her sister, is the usual place of abode or residence of the appellant at which a notice may- be posted. The appellant having engaged in employment in another state, at a fixed place, and remaining there for two years, and intending to remain for an indefinite time, in the future, we are of opinion that such place in such state would be her “usual place of abode” at the time this suit was filed. We think the case falls within the principles announced in Alston v. Newcomer & Kausler, 42 Miss. 186.

It will be noted that the note became due March 9, 1910, and would become barred by our six-year statute of limitation on March 9, 1916, if the appellant actually lived in Mississippi, provided the statute was not suspended by some other cause.

It follows from what we have said that the judgment of the chancery court was correct, and the cause is affirmed.'

Affirmed and remanded.