115 P.2d 627 | N.M. | 1941
Lead Opinion
Bessie Caseldine, the appellant, a resident of Missouri, on September 12, 1939, filed her claim against the estate of Nancy A. Goldsworthy, deceased, pending in the District Court.
The claim consists of nine separate and distinct items as appears in the court's findings and conclusions quoted post. Items numbered 1 to 6 and number 8 are for personal services rendered by claimant to the deceased in Missouri during a period of time from July 1, 1917 to an unnamed date *408 in July, 1930. Item No. 7 is for maintaining and caring for the grave of the husband of Mrs. Goldsworthy from 1923 to 1938 in the sum of $50. Item No. 9 is for money expended and advanced for Nancy A. Goldsworthy for postage from October, 1923 to May 31, 1938, amounting to $9.60.
The executor, the appellee, filed written objections to said claim and each and every item thereof as follows: "* * * (1) that each and every item of the claim was barred by the Statute of Limitations of the State of Missouri and also of the State of New Mexico; (2) that the claim was not corroborated by any promise in writing to pay the same by the deceased, and (3) that the said claim was wholly void and without force and effect, and was not a binding obligation of the Estate of the deceased, and should be denied."
The case was tried by the court, without a jury. The claimant offered in evidence the testimony of five witnesses, all by depositions. No testimony was offered by the Executor in resistance to the claim.
The court took the case under advisement and on December 27, 1939, rendered its notice of decision as follows:
"After considerable wrestling with the briefs and authorities, I have reached the conclusion that as the indebtedness was not contracted in New Mexico and did not accrue herein, that it is barred by our Statute of Limitations except for the letter written by Mrs. Goldsworthy and attached to the deposition. Both of these questions were very close.
"An examination of the deposition does not disclose that any specific amount was agreed upon for board and nursing, so that the recovery thereon will have to be on quantum meruit. Additional proof will have to be offered as to the reasonableness of the claim. The claim for storage, caring for the grave, and postage will be disallowed on account of lack of corroboration. I will give the claimant an opportunity to take additional depositions on the reasonable value of the nursing services and board and room."
The question of reasonableness of the claim was met by a stipulation of the parties to the effect that if the services were rendered as set out in Items 1, 2, 3, 4, 5, and 8, the demands therefor are reasonable. In view of the record, we conclude that Item No. 6 presented a claim reasonable in amount, being less than a dollar a month for the services alleged to have been rendered.
On March 20, 1940, the court filed a memorandum opinion in which it withdrew the former memorandum notice of decision heretofore quoted. In this second decision, the court's principal if not the sole reason for reversal of its former holding was that a letter written by Mrs. Goldsworthy to claimant in 1936, which concluded with the words: "I will pay you soon.", did not, as the court had originally thought, serve to revive the indebtedness, the court saying: "There are many items in the claim and the letter is, in my opinion, too indefinite upon which to base a revival or *409 written acknowledgment of the indebtedness."
The same day the court made its findings of fact and conclusions of law, the material portions of which are as follows:
"1. That decedent was a resident of New Mexico for approximately three months prior to the time of her death and had never been a resident of this State at any other time.
"2. That the claims for board on the items barred by limitations in support thereof are indefinite and rather unsatisfactory, while the items within the six year period are intermingled with the old items and the unbarred part can not from the testimony be segregated.
"3. That the decedent was never a member of claimant's family.
"4. That the decedent was a resident of the State of Missouri at the time the services were performed by claimant, other than postage and storage charges incurred after decedent's removal from the State of Missouri in 1923. From 1923 until decedent's removal to New Mexico, a short time prior to her death, she was a resident of the State of California.
"5. That the letter attached to the depositions and received in evidence was written by decedent on June 29, 1936.
"6. That the executor has submitted no evidence to show that the claim as submitted by the claimant, is not the indebtedness mentioned by decedent in her said letter.
"7. That the claim herein consists of nine separate and distinct items as follows:
1. Nursing and boarding the said Nancy A. Goldsworthy from July 1, 1917 to January 1, 1918. 6 months at $40 per month ............. $240.00
2. Boarding said Nancy A. Goldsworthy for the months of February, March, April, May and June 1918. 5 months at $30 per month ..... 150.00
3. Boarding said Nancy A. Goldsworthy for the months of April, May, June, July and August 1919. 5 months at $30 a month ....... 150.00
4. Boarding said Nancy A. Goldsworthy for the months of March, April, May and June 1920. 4 months at $30 a month .............. 120.00
5. Boarding said Nancy A. Goldsworthy for the months of September, October, November and December 1921. 4 months at $30 a month ........................................ 120.00
6. Storage and handling of trunks of the said Nancy A. Goldsworthy and storage and handling of other household goods for her for five years, 1918 to 1923 ....................................... 50.00
7. Maintaining, decorating and caring for her husband's grave and her lot from 1923 to 1938, inclusive, which required the claimant to drive a distance of 25 miles to perform said services ....................................................... 50.00 *410 Amount Brought Forward ............................................. $880.00
8. Boarding said Nancy A. Goldsworthy for two weeks in 1923 and for two days in July 1930 ...................................... 16.00
9. Money expended and advanced for the said Nancy A. Goldsworthy for postage to mail the Braymer Bee, a weekly newspaper of Braymer, Missouri, from October 1923 to May 31, 1938 ........... 9.60 _______ $905.60
"8. That the only reference in the letter of June 29, 1936 is that part reading `will pay you soon.'
"1. That all items set out and showing to have been incurred more than 6 years prior to the death of decedent are barred by limitation.
"2. That the letter of June 29, 1936 is so indefinite and vague as to the debt meant that it is insufficient to revive the indebtedness.
"3. That the items of indebtedness not barred on their face are not segregated and are so intermingled with the barred items that it is impossible to determine their amount.
"4. That the testimony offered in corroboration is vague and indefinite as to amounts, though if not barred might besufficient, but there is no corroboration on the items not barred by limitations." (Italics supplied)
We will decide the matter of corroboration first.
In the second memorandum the court said: "As to that part of items 7, 8, and 9 which are not barred, they are intermingled with barred items to such an extent that it is impossible from the deposition introduced in evidence or the claim to ascertain the amounts claimed to have accrued within the period not barred, and further there is no sufficient testimony corroborating theselatter items." (Italics supplied)
This indicates that the court did not specifically find that the item said to be barred were without corroboration. This also appears in the court's formal conclusion number 4 that if the claims were not barred the testimony offered in corroboration "might be sufficient". Furthermore, we find the court made an order relative to the findings and conclusions requested by the parties in which it is recited that: "* * * all requested findings of fact and conclusions of law of the parties in conflict with those made by the court be, and they are hereby denied, * * *."
Among plaintiff's requested findings of fact is the following: "That the claim of Bessie Caseldine has been corroborated by other material evidence." It would be difficult to say that this requested finding was denied, because it is not in conflict with any finding the trial court made except *411 as to Items 7 and 9, which the court specifically found to be uncorroborated.
On the other hand, the executor made no specific request for a finding of fact that the claim was not corroborated. However, the executor did request a conclusion of law as follows: "That the evidence of the Claimant regarding said alleged indebtedness is not corroborated by other material evidence in accordance with the Statutes of the State."
It would have been inconsistent to have given this conclusion of law in view of what the court did find and conclude that as to Items 1 to 6 the evidence of corroboration "might be sufficient". It is manifest from the record that the change of view of the court from allowance of certain items to disallowance thereof was due solely to a change of opinion relative to the application of the law of limitations without regard to the question of corroboration.
We are disposed to agree with the objector's counsel in his brief that: "From the opinion of the trial court (Tr. 19) it does not appear that the court gave much consideration to the question of corroboration of the claim, he having already denied the claim on account of its being barred by the statute of limitations."
Our appraisal of the evidence, in view of this state of the record, is that the items not found by the court to be uncorroborated are sufficiently so corroborated. We accept as correct the court's disallowance of Items 7 and 9 for the reasons given by the court. We find that said reasons do not apply to the remaining items of the claim.
We now turn to the more important question of the application of the statute of limitations. The statute involved (Sec. 83-107, N.M.S.A. 1929) is as follows: "If, at any time after the incurring of an indebtedness or liability or the accrual of a cause of action against him or the entry of judgment against him in this state, a debtor shall have been or shall be absent from or out of the state or concealed within the state, the time during which he may have been or may be out of or absent from the state or may have concealed or may conceal himself within the state shall not be included in computing any of the periods of limitation above provided."
The learned trial judge, upon the earnest insistence of counsel for appellee, found a meaning in the statute which would be clearly expressed by inserting the phrase "in this state" immediately after the word "him", so as to make the same read: "If, at any time after the incurring of an indebtedness or liability or the accrual of a cause of action against him inthis state or the entry of judgment against him in this state, a debtor shall have been or shall be absent from or out of the state or concealed within the state, the time during which he may have been or may be out of or absent from the state or may have concealed or may conceal himself within the state shall not be included in computing any of the periods of limitation above provided." *412
It is contended by appellee that the legislative intent would be elucidated by interpolating in the statute the italicized words "in this state".
Sutherland on Statutory Construction, 2nd Ed., Sec. 408, says: "Statutes as well as other writings are to be read and understood primarily according to their grammatical sense, unless it is apparent that the author intended something different. In other words, it is presumed that the writer intended to be understood according to the grammatical purport of the language he has employed to express his meaning."
In 59 C.J., Statutes, Sec. 583, it is said: "By what is known as the doctrine of the `last antecedent,' relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote."
So, reading the statute in the light of these rules of construction, we hold that the qualifying phrase "in this state" appearing after the phrase "entry of judgment against him" immediately preceding does not extend to the more remote antecedent, "incurring of an indebtedness or liability or the accrual of a cause of action against him."
We see no cogent reason to strive to discover a contrary legislative intent. In the first place, the law favors right of action rather than the right of limitation. Gresham v. Talbott,
Secondly, since our courts are open to the assertion of causes of action accruing in other states, there is no apparent reason why the legislature should have intended to discriminate in the application of the statute tolling the statute of limitations. In view of the principles of comity and the desirability for the uniformity of laws, we should not discover in a statute an intention to discriminate as to the place where the cause of action accrued, unless such intention is plain and unescapable. In Cvecich v. Giardino,
In Wood on Limitations, 4th Ed., Sec. 244, there is a discussion and recapitulation of statutory provisions from most of the states with reference to absence of defendant from the state. From a reading of this section, we discover only two states where the provisions seem to attach any significance to the place where the cause of action accrued. It is said by Mr. Wood that in Mississippi the statute reads: "`If, after any cause of action has accrued in this state,' the defendant `be absent from and reside out of the state.' etc." Code Miss. 1930, § 2310.
The situation in Mississippi, which is exceptional and tends to prove the rule, is described in Note 38 to Sec. 392, 37 C.J., Limitation of Actions, cited to the text: "Where the cause accrues in another state and defendant is a resident of the state of the forum, the statute of the latter state runs, and the statute rule that absence suspends the operation of limitations applies, although both parties reside out of the state, and in the state where the cause accrued and where suit might have been brought, the statute of the state of the forum running only from the time defendant comes in to that jurisdiction, * * *" The note says: "(d) In Mississippi (1) it was held that, where the parties had resided in Tennessee and the cause of action was barred there, when they went to Mississippi, the action was not barred in the latter state. Perkins v. Guy,
It has been suggested that unless we give the statute the construction contended for by the appellee the courts of this state will be crowded with stale claims from abroad to the exclusion of other legitimate business. We doubt if this is so, but even if the supposed evil might exist, it would be something to be avoided or corrected by the legislature. In Mason v. Union Mills Paper Mfg. Co.,
"In [Fairfax Forrest, etc.] Co. v. Chambers [
"In Paine v. Drew [
In Hale v. Lawrence (Howe v. Lawrence),
It has been suggested, though not the basis of the trial court's decision and not urged here by appellee in support of the judgment, that when a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar should be a complete defense to any action thereon in any of the courts of this state. This may be so, but it is a matter of legislative concern and not ours. This result has been accomplished in a number of states. In Cvecich v. Giardino, supra, a California statute is referred to as follows: "Section 361 provides: `When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued.'" Code Civ.Proc. § 361.
It also appears that Colorado Compiled Laws, 1921, Sec. 6407, provides that where a cause of action has arisen in another state and is barred by reason of the lapse of time, it is barred in Colorado. It also appears that in 1899 the Missouri legislature passed a statute relating expressly to limitations applicable to foreign causes of action which were sued on in Missouri. The amendment provided for a new section to be known as Sec. 6779a of the Revised Statutes of Missouri, 1899, and reads as follows: "(Section 1.) Section 6779a. Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state." Laws Mo. 1899, p. 300.
Our statutes contain no such provisions. *416
We find nothing in Stern v. Bates,
Our statute, as applied to the case at bar, results in accordance with the general rule announced in 17 R.C.L., Limitations of Actions, Sec. 199, as follows: "If the cause of action arose out of the state, it is sufficient to save the statute from running in favor of the party to be charged until he comes within its jurisdiction."
So it appears that action upon the claim could have been maintained here during the three months immediately prior to the death of the decedent Mrs. Goldsworthy, and the statute of limitations would not have been a bar to such action because, as found by the court, she had not been a resident of this state at any other time.
From all of the foregoing, it appears that the judgment of the trial court must be reversed. The cause is remanded with directions to allow all of said claim except Items Nos. 7 and 9, and enter judgment thereon, and otherwise award relief to claimant not inconsistent with the views herein expressed.
It is so ordered.
BRICE, C.J., and SADLER and MABRY, JJ., concur.
Dissenting Opinion
Dissenting alone in this case, a position which I rarely take, leaves me in doubt as to the correctness of my position. The lone dissenter surely cannot believe that every one of his associates on the bench is out of step except himself in the reasoning employed in the particular case under consideration to reach the conclusion arrived at. Nevertheless, if my views accomplish nothing else but a legislative change in the statute under consideration, my lonesomeness will be rewarded and my self-accusation of doubt as to my position be dissipated in the accomplishment of that which I believe to be a desired result.
The trial court ruled that the claim was barred by the Statute of Limitations (1929 Comp.St., Sec. 83-104) and that the same was not tolled in the instant case as provided for by 1929 Comp.St., Sec. 83-107. In the case of Bunton v. Abernathy et al.,
From this appellant argues that the limitations statute cannot aid the appellee because the decedent was a non-resident debtor and therefore the statute did not begin to operate in her favor until she came into the State of New Mexico. The Bunton case is not in point on the facts before us.
In the case of Lindauer v. Boyd, supra, decided in 1902, we construed the 1880 Act (Comp. Laws 1897, § 2921) which reads as follows: "2921. If, after a cause of action accrues, a defendant removes from the territory, the time during which he shall be a non-resident of the territory shall not be included in computing any of the periods of limitation above provided.", and held that the Statute of Limitations ran unless tolled by a definite exception, and to come within this exception, the defendant must, first, be a resident of the territory at the time the cause of action accrues, and second, depart thereafter. If this same rule and statute were in effect now there could be no doubt but that the present claim would be barred. However, the statute later was amended as we pointed out in Bunton v. Abernathy, supra.
The case of Orman v. Van Arsdell, supra, construed the amended statute. This amended statute is controlling here.
The legislature in amending the 1880 law intended to correct what they considered an evil situation brought to light in the Lindauer case. It was under the 1880 Act that a New Mexico creditor was precluded from collecting from non-residents (who had been out of the State for a period of more than six years) a bona fide debt incurred in New Mexico. That this desired result was obtained, is evident from our decision in the case of Orman v. Van Arsdell, supra, decided in 1904.
The essence of our decision in the case of Bunton v. Abernathy, following Orman v. Van Arsdell is this: After a cause of actionaccrues in this state the running of limitations will be tolled during the absence of the defendant from the state *418 regardless of whether or not the defendant was non-resident at the date of the accrual of the cause of action.
As I view the facts of the case now before us, neither the Orman v. Van Arsdell or the Bunton v. Abernathy cases aid the appellant. In both the Orman v. Van Arsdell and the Bunton v. Abernathy cases the plaintiffs were residents of the State of New Mexico and the causes of action accrued within the State of New Mexico. In the instant case the appellant is not a resident of the State of New Mexico, and never has been, and the cause of action did not accrue in New Mexico, but in Missouri.
What we said in the case of Northcutt v. King,
It seems to me that if Sec. 83-107 is available in tolling the limitations statute only to judgments rendered in this state, then in like manner it is available only to an indebtednessincurred in this state.
Eliminating the excess verbiage found in Sec. 83-107, and not applicable in the instant case, that part of the section applicable reads as follows: "If, at any time after the incurring of an indebtedness * * * in this state, a debtor * * * shall be absent from or out of the state or concealed within the state * * * shall not be included in computing any of the periods of limitation."
Thus it is seen that before this section is operative in the instant case the cause of action must have been incurred in thisstate. Since the present cause of action was incurred in Missouri the limitations statute is not tolled and the case is barred.
The only change caused by the 1903 amendment to the 1880 Act as I view it was to prevent non-residents, living elsewhere than in New Mexico during the period of limitation, from claiming the *419 benefit of the Statute of Limitations as against a debt created, incurred or accrued in New Mexico and owed to a New Mexico creditor. The legislature did not intend by the amendment to allow non-residents to collect in New Mexico courts claims incurred or accrued in other states and which have there become stale, from debtors who have come into the State of New Mexico where service may be had upon them before the New Mexico limitation period has run. To hold with the appellant's view, a non-resident creditor with a claim incurred elsewhere and which is ten, twenty, forty or even fifty years old could maintain a suit on his claim in this State against any person who happens to come within our borders, and who has lived here for a period of time less than that provided by our statutes to bar such claim.
I do not believe the Legislature intended such a result. The majority have failed to give any satisfactory explanation why the tolling statute (Sec. 83-107) should operate only upon domestic judgments and not foreign judgments. The majority has failed to explain satisfactorily why the Legislature should favor causes of action, whether tort or contract, accruing in other states over adjudicated judgments arising out of tort or contract actions in such states. To my mind Sec. 83-107, as viewed from the four corners of the statute is applicable solely and only to causes of action as well as judgments accruing in this state, and none other. To my mind Sec. 83-107 shouts its message that absence or concealment tolls the periods of limitation only when the indebtedness or liability or cause of action or judgment was incurred in this State.
I present my views in dissent from the majority if for no other reason than to secure a legislative change.