8 Kan. 262 | Kan. | 1871
The opinion of the court was delivered by
Defendants in error brought suit in the district court upon two notes executed by plaintiff in error. A demurrer was filed on the ground that the petition did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment rendered for defendants in error,
“ That in the year 1867 defendant secretly left the State of Illinois, which State had been the defendant’s home and residence from the execution of said notes up to the time of his departure aforesaid. Plaintiffs further aver that they did not learn the whereabouts of said defendant until a short time before the commencement of this suit, and that the defendant was then and is now a resident of Crawford county, Kansas. Plaintiffs further aver that defendant has only been a resident of Kansas three years last past.”
The judgment of the court below will be reversed, and the case remanded with instructions to sustain the demurrer.
—The case being remanded to the district court, the plaintiffs, Emerson & Taleott, amended their petition. The two notes were again set out in full, and in addition to the usual averments in such actions, the amended petition alleged that the said defendant had been in the State of Kansas for three years only next immediately preceding the commencement of the action etc. The averment is quoted in full in the opinion. To said amended petition defendant demurred. The case was tried on the demurrer at the September Term, 1871, of the district court, when said demurrer was sustained. Plaintiffs, Emerson & Taleott, excepted, and brought the case here for
The opinion of the court was delivered by
The plaintiffs in error brought suit on two
notes in one action. The notes became due Dec. 25, 1862, and Oct. 1, 1863. The action was commenced July 22,1870. On demurrer it was held that the action was barred by the statute of limitations, and that is the only question in the case. The statement in the petition, which is insisted takes the case from the operation of the statute, is as follows:
“ That the defendant has been in the state of Kansas for three years only next immediately preceding the commencement of this action: that all the time, except only the three years immediately before the commencement of this suit the defendant was absent from this state, and never was within the limits or jurisdiction of this state at any moment of time before said three years; and his being so absent from the state prevented the plaintiffs from suing Mm.”
menced, or where by the statutes already in force the right of action had been barred. The right of action in this case had not been barred. This is settled in the case of Bonifant v. Doniphan and Walker, 3 Kas., 26. The legislature in the repeal of previous laws, and the substitution of a new limitation, acted within the sphere of their authority; and the application of the statutes now in force is all that is needed to settle this case. Section 21 of our civil code provides that the limitation does not run while the debtor is absent from the state. This section is precisely the same as section 28 of the code of 1859, which was commented on in the case of Bonifant v. Doniphan and Walker, supra; and it was decided in that case that the sec
The judgment is reversed.