Hunt v. Belknap

78 Miss. 76 | Miss. | 1900

Terral, J.,

delivered the opinion of the court.

Prior to the code of 1880, time elapsed before one liable to suit came into’ this state, was not available to him here in support of the plea of the statute of limitations; and if, after he came here he was absent and resided out of the state, the time of such absence was not to be counted in his favor. Code-1857, art. 13, pp. 400-1; code 1871, §2157. By the code of 1880 only the last clause or member of the former article or section Was preserved, while the first part, denying the benefit of time elapsed before coming here, was dropped, so that the effluxion of time, wherever the defendant was, should be available; and by § 2684, code 1880 (§ 2754, code 1892) the completion of the bar in any jurisdiction of the former residence of the defendant should avail him here. Whereas, by code prior to 1880 time expired elsewhere than here was not available in this jurisdiction in support of the plea of the statute of limitations; by that code (1880) time without regard to place was to be computed in support of the plea. So now, if time enough to bar has expired, it matters not where, the bar is complete and available here, unless some express statutory provision applies to make an exception, and so we held at this term in Wright v. Mordaunt. A cause of action accrues in this state whenever one has a right of action in this state, and in such case, if 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. In other words, as to actions accrued in this state, the absence and residence out of the state of the party liable thereto, prevents the time of such absence from being computed in his favor as a bar to this action.

In this case a cause of action accrued in this state to do what is sought by this bill to be done, i. e., to enforce the security against the land in this state, and the time of the absence of the debtor out of this jurisdiction is not to be computed as time to bar the claim, for such is the plain provision of § 2748, code 1892.

The order of the court overruling the demurrer is affirmed, and the case is remanded with leave to the defendants to file cm answer withim, thirty days from the filing of the mandate in the court ielow.