169 P. 954 | Utah | 1917
The plaintiff brought this action to recover judgment upon an open account for goods, wares, and merchandise
The court found the facts as follows:
‘ ‘ That on and between February 11,1909, and September 4, 1909, at Salt Lake City, Utah, the plaintiff sold and delivered to the defendant, W. F. Snyder, at his request, goods, wares, and merchandise, for which said defendant promised to pay the plaintiff the sum of $308.27. That no part of the same has been paid. That on or about August 15, 1909, the defendant, W. F. Snyder, departed from the state of Utah, and was absent from the state for the ensuing six years, with the exception of the period between about September 1, 1911, and January 10, 1912.”
Actions ‘ ‘ on an open account for goods, wares, and merchandise * * * may be commenced at any time within four years after the last charge is made, or the last payment is received. ’ ’
Section 2888 reads:
“If when the cause of action accrues against a person he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of the action accrues he depart from the state, the time of his absence is not part of the time limited for the commencement of the action.”
This action was commenced August 1, 1916. According to the facts as found by the court we assume that the last item was purchased on September 4, 1909. The action would thus not be barred until September 4, 1913. The court found that the defendant departed from the state and was absent therefrom from about August 15, 1909, for six years, less four months and ten days, or that he was absent five years, seven months, and twenty days. If, therefore, the cause of action accrued on September 4, 1909, and the action was commenced August 1, 1916, there were six years, ten months, and twenty-seven days, or nearly seven years, between the time the cause of action accrued and the time it was commenced. If, however, we subtract the time the defendant was out of and absent from the state from the six years, ten months, and twenty-seven days, then the statute had only run «one year, three months, and seven days. It is however, conceded that the defendant’s family, consisting of his wife and minor children, continued to live in this state during all of the time that the defendant was out of the state and absent thereform. It is contended that under our statute (Comp. Laws 1907, section 2948, subd. 8) an action could have been commenced against
Defendant’s counsel contends that the provisions of that section apply- only to cases where neither the debtor nor his family have a place of abode or residence within the state so that process cannot be served, and that where, as in this case, process can be served at the place of abode of his family, and thus an action can be commenced at any time, the running of the statute is not arrested by reason of the defendant’s absence from the state. In support of his contention counsel cites and relies on the following cases: Penley v. Waterhouse, 1 Iowa, 498; Collester v. Hailey, 6 Gray (Mass.) 517; Dent v. Jones, 50 Miss. 265; Quarles v. Bickford, 64 N. H. 425, 13 Atl. 642; Rutland Marble Co. v. Bliss, 57 Vt. 23; Blodgett v. Utley, 4 Neb. 25; Omaha, F. L. & T. Co. v. Parker, 33 Neb. 775, 51 N. W. 139, 29 Am. St. Rep. 506; Sage v. Hawley, 16 Conn. 106, 41 Am. Dec. 128; Palmer v. Shaw, 16 Cal. 93; Whitten v. Wass, 109 Mass. 40. In view that the question is presented for the first time to this court we shall briefly refer to the foregoing eases and the statutes on which they are based.
The cases cited from Iowa, Nebraska, Connecticut, and California are all based on statutes which, in legal effect, are like our section 2888, supra, which we have quoted in full. Notwithstanding the language of those statutes, however, it was held in those cases that mere absence from the state in case the debtor could be served with process within the state would not arrest the running of the statute of limitations. The cases cited from Massachusetts, Mississippi, New Hampshire, and Vermont are, however, based upon statutes that are quite different from ours. In Massachusetts the statute is arrested only in ease the debtor is ‘ ‘ absent from and resides out of the state. ’ ’ That is, the running of the statute is not arrested unless the debtor has lost his domicile in the state. Gen. St. Mass. 1860, ch. 155, section 9. The subsequent statutes of Massachusetts are to the same effect. The statute of Mississippi (Rev. Code Miss. 1871, section 2157), and of New Hampshire (Gen. St. c.
Our statute is an exact transcript from the California statute, and in the case of Rogers v. Hatch, supra, the rule applicable to the facts in the case at bar is stated in the following words:
"If, when the cause of action here accrues, the person against whom the same exists resides in the state, and he afterwards departs from the state, his successive absences from the state must be aggregated together and deducted from the whole time which has elapsed since the cause of action accrued, and the balance is the time the statute of limitations has run."
The other California cases fully support the foregoing text.
The Kansas and Ohio statutes (Gen. St. Kan. 1868, ch. 80, section 21; 2 Bates, Ann. St. Ch. section 4989) are precisely like ours, except in those states the running of the statute is also arrested in case the debtor “absconds or conceals” himself as well as if he “is out of the state.” In the other states from which the cases last mentioned are cited the statutes are in legal effect like ours. The only difference, if any, consists of immaterial phraseology. The rule in force in Kansas is stated in the case of Hoggett v. Emerson, supra, thus:
"The question of presence or absence from the state, and not the question of residence or non-residence, affects the running of the statute under section 21 of the Code of Civil procedure.”
The other cases cited from Kansas are to the same effect.
In Bauserman v. Blunt, supra, the rule prevailing in Kansas is stated in the following language by the Supreme Court of the United States:
"The statute of limitations of Kansas, as construed by the Supreme Court of the state, does not run while the debtor is personally absent*233 from the state, although lie retains a usual place of residence therein, where a summons upon him might be served.”
The Ohio statute, as before stated, is the same as the Kansas statute, and in Stanley v. Stanley, supra, it is said:
"Under the provisions of section 4989, Revised Statutes, presence of the defendant in the state, for the full period of the time limited for bringing an action, either continuously or in the aggregate, is necessary to constitute a bar of the action.”
It is not necessary to further review, or quote from, the cases. It must suffice to say that the great — the overwhelming — weight of authority, under statutes like ours, is in support of the decision of the district court.
Nor can it be successfully contended that the decisions in those cases which are based upon statutes that are tolled if the debtor “be out of the state” are not supported by sound reason. There certainly is a very clear and substantial difference between the language “out of the state” and
Nor is the contention that the statute continued to run after the defendant left the state again on January 10, 1912, sustained by the authorities. Indeed, the authorities that hold that absence from the state tolls the statute, all agree that the statute runs only during the time the debtor is
In view of the foregoing but one conclusion is permissible, which is, that the judgment of the district court is right, and should be affirmed. Such is the order. Respondent to recover costs.