| Ill. App. Ct. | Feb 14, 1899
Lead Opinion
delivered the opinion of the court.
Appellant was sued before a justice of the peace upon an open account alleged to have been contracted prior to Julv 1, 1882, in Detroit, Michigan, where both plaintiff and defendant .then resided.. Plaintiff moved to Chicago in the fall of that year, and has since resided in Illinois. In November, 1883, the defendant moved to Kansas City, and about a year later to Kentucky. There he remained until some time in 1889, when he moved to Arkansas, where he has since continued to reside.
At the trial in the County Court on appeal from the justice, appellant read in evidence the statutes of Arkansas to show that actions upon open accounts are barred in that State in three years; and the statutes of Kentucky to show that such actions are barred in the latter State within five years from the time when such actions accrue.
It is contended that the action is barred in Illinois, by the statute, as follows:
“ When a cause of action has arisen in a State or Territory out of this State, or in a foreign country, and by the laws thereof an action thereon can not be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.” Kev. Stat., Chap. 83, Sec. 20.
This provision has been construed in Hyman v. McVeigh, mentioned in 87 Ill. 708, in a table of unreported cases, and reported in the Chicago Legal News, Vol. 10, p. 157. The case is referred to in Wooley v. Yarnell, 142 Ill., on page 449, and also in Humphrey v. Cole, 14 Ill. App. 56" date_filed="1883-11-16" court="Ill. App. Ct." case_name="Humphrey v. Cole">14 Ill. App. 56. The Supreme Court in that case, Hyman v. McVeigh, used the following language:
“ The words, ‘ when a cause of action has arisen,’ as they occur in the statute pleaded, should be construed as meaning when jurisdiction exists in the courts of a State to adjudicate between the parties upon the particular cause of action if properly invoked; or, in other words, when the plaintiff has the right to sue the defendant in the courts of the State, upon the particular cause of action, without regard to the place where the cause of action had its origin. This was the view taken in Hyman v. Bayne, 83 Ill. 256" date_filed="1876-09-15" court="Ill." case_name="Hyman v. Bayne">83 Ill. 256, although not discussed at length in the opinion, and we do not conceive that the question need be discussed now.”
In Wooley v. Yarnell (above cited) it is said that in Hyman v. Bayne and Hyman v. McVeigh :
“ As will be found upon an examination of the record, the maker and payee both resided out of this State, at the maturity of the cause of action sued on, and when the cause of action accrued, and so remained until an action was barred in and by the laws of the foreign State where the domicile existed. What was said in Hyman v. McVeigh, must be limited and confined to the facts presented by the record then before the court, that neither the maker nor the payee of the note, at the time the cause of action arose, resided in Illinois.”
It will be seen that in the above quotation, the words “cause of action accrued” and “cause of action arose,” appear to be used interchangeably. In the Century Dictionary one of the definitions of “ accrue ” is, “ Arise in due course,” and another is, “ in law, to become a present and enforceable demand.” A cause of action may properly, we think, be said to accrue, when the liability arises so far as to become enforceable.
The construction of section 20, as given in Hyman v. McVeigh, must then be limited and confined to causes rvhere not only both parties resided out of this State when the action accrued, but both parties continued to reside out of the State, and “ so remained until an action was barred in and by the laws of the foreign State where the domicile existed.”
In the case at bar these conditions do not apply. The plaintiff became a resident of this State a few months after the cause of action accrued to him in Michigan. We can. not presume it was then barred in Michigan. Ho such defense is set up. If there had been pleadings in the case, a bar of the Michigan statute could be raised by plea. There being no pleadings, it could have been presented by the introduction of the Michigan statute in evidence to sustain such defense, if it was relied upon. But it is not relied upon. It is not claimed it was then barred in Michigan. The reliance of the defense is upon the statutes of Kentucky and Arkansas, which were read in evidence.
The plaintiff became a resident of Illinois. His cause of action was a present and enforceable demand whenever the defendant could be bound here. He was under no obligation to follow the defendant to Missouri, Kentucky, and finally to Arkansas, and bring an action there. But, as is said in Wooley v. Yarnell, supra, bn page 450, “ he had the right to wait until the defendant returned to the State, and then sue, and rely upon section 18 of the statute, should the defendant rely upon the time of his absence to create a bar to the action.” The cause of action having accrued against the defendant, the action could be commenced against him, as it was, within the time limited by the statute, after his coming into the State.
In Angelí on Limitations, Chap. VIII, the author says, referring to Story on Conflict of Laws: “ That remedies on contracts are to be regarded and pursued according to the law of the place where the action is instituted, and not by the law of the place where the contract is made;” and he also says: “ that personal contracts are to have the same validity, interpretation, and obligatory force in every other country which they have in the country where they are made or are to be executed.”
In Banking Ass’n v. Com. Nat. Bank, 157 Ill. 524" date_filed="1895-10-11" court="Ill." case_name="Hibernian Banking Ass'n v. Commercial National Bank">157 Ill. 524, 539, it was held that section 20 did not appl_y, “ for the reason that the cause of action accrued in this State before his departure, and it could not be said to have arisen in Dakota.”
In the case before us, the cause of action accrued before the defendant went to Arkansas or Kentucky.
In Humphrey v. Cole, 14 Ill. App. 56, it was said that under the facts, that case was governed by Hyman v. McVeigh. But the instrument sued on was payable at a place, the location of which did not appear, nor did the place of residence of the plaintiff appear during the time of the residence of the defendant in a foreign State. The views therein expressed as to the statute of limitations were unnecessary to the decision, it appearing that the debt had “ been due more than twenty years prior to the bringing the suit,” and hence the common law presumption of payment had arisen from such lapse of time.
The bar of section 20 of the statute of limitations being the only error relied upon, the judgment of the County Court must be affirmed.
Concurrence Opinion
I concur in the result, but not in certain portions of the opinion.