Lane v. National Bank

6 Kan. 74 | Kan. | 1870

The opinion of the court was delivered by

Safford, J.:

i. Limitation of ACTIONS- Ab-&omet°iie sS, Sesfsiiffioie'nt of the statute. The note sued upon in' this case was executed beyond the limits of the State, and bore date of February 20th, 1865, due upon demand. Suit J 7 Jr was commenced Sept. 2, 1867. The record shows that on the trial in the court below, the qefen¿ant relied upon the two-years statute of limitation. Comp. L. 1862, ch. 27, §2. The plaintiff, in reply to this defense, interposed the claim, that during the time which had elapsed since the accruing of the cause of action, and before the commencement of the suit, the maker of the note had been out of the State of Kansas for such a period as would, under § 28, ch. 26, Comp. L., take the ease out of the statute. Section 28 reads as follows:■ “If, when a cause of action accrues “against a person, he be out of the territory, or has “absconded, or concealed himself, the period limited for “ the commencement of the action shall not begin to run “ until he comes into the territory, or while he is so “ absconded or concealed; and if, after the cause of action “ accrues, he depart from the territory, or abscond, or con- “ ceal himself, the time of his absence or concealment shall “ not be computed as any part of the period within which “the action must be brought.” (Gen. St. 1868, ch. 80, § 21.)

It is contended for the defendant below, that the rule here laid down is not applicable to, and therefore does not govern this case. The admitted facts, as to the point in question, are in substance, that the maker of the note, at the time of the execution thereof, had a furnished house in the city of Lawrence, in this State, which was his usual place of residence for himself and family, and so continued to be his and his family’s said usual place .of residence, after the cause of action had accrued on said note, and up to the time of his death, which occurred on or about the 11th day of July, 1866; and thereafter, that of his family. It is further admitted that after the said accruing of the cause of action upon said note, the maker was personally absent out of the State of Kansas, attending to his duties as a member of the United States Senate, and on other business, a sufficient length of time to prevent the statute of limitations above referred to from running against said note, if the time he was thus absent should be excluded in computing the time limited by said statute for the bringing of suit thereon. These admissions seem to have the effect of disposing of one question which has occupied the attention of counsel on either side, in their discussion of the case; and that is, the one relating to the time of the accruing of the cause of action upon the note, as against the maker, or his representative. That question may therefore be laid out of the case here.

2'staTuie.u0QeS-0f al words to have general opera-It seems also to be conceded, that if section 28, before referred to, be construed according to the plain and literal signification of the language used, and in its . .. . r1 n ~ , - common acceptation, or m other words, 11 the legislature in enacting said section meant just what they said therein, and no more, then, and in that case, the above admitted facts make a case to which such section is intended to apply. At least, such is our view of the matter. It would be difficult to use language more clear, full, and expressive of the idea which is apparent at a glance, and upon the face of this provision of the statute; and we are not able to discover any satisfactory, reason why we should give to it any other than such obvious meaning. Such literal construction does not make a conflict with any other provision of the code, or other statute; neither are we aware of any circumstances or considerations which imply that the enacting power intended anything further or beyond what is so plainly expressed. “ It is a settled principle in the construction of statutes of limitation, that general words are to have a genera] operation; and unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment.” 19 Wisconsin, 60, and authorities there cited. We hold therefore that und§r said section 28, the statute of limitations did not run upon the note in question during the absence of the maker from the State, as by the admitted facts appears, and that as a consequence the action thereon was not barred at the commencement of the suit.

The counsel for defendant in error referred _ us to authorities in point, and sustaining the view we have here taken; while on the other hand, the opposing counsel has cited us to cases which are clearly in support of a contrary doctrine. To these latter we have given careful consideration, but as before seen, have felt compelled to dissent from the conclusions therein expressed. It is to be remarked however, that some of these decisions were made in view of statutory provisions which are substantially different from our own upon the same subject. .

The judgment of the court below is affirmed.

Kingman, O. J., concurring. Valentine, J., not sitting in the case, having tried it in the court below.