150 Iowa 243 | Iowa | 1911
Plaintiff claims that defendant at Sioux City, Iowa, alienated his wife’s affections from him. At the time the cause of action arose, and for many years prior thereto and down to the time of the rulings complained of, both plaintiff and defendant were citizens and residents of the state of Nebraska. The alleged alienation occurred January 8 to 29, 1907, inclusive. Defendant, among other defenses, pleaded the following:
(2) This defendant admits that plaintiff and Mary E. McAllister were married in Sioux City, Iowa, and that several children were born to plaintiff and his wife; and defendant alleges that ever since on or about the 15th day of June, 1901, plaintiff and his wife and this defendant have been citizens and residents of the state of Nebraska, and that plaintiff and defendant are still citizens and residents of the state of Nebraska; that the cause of action, if any plaintiff has, accrued more than two years prior to the commencement of this action, and is barred by the statutes of limitations;. . . that after coming into the home of the defendant, James J. McAllister, to live, the said wife, whose name was Mary E. McAllister, commenced an action in the- district court of Dakota county, Nebraska, against the plaintiff herein for divorce on the ground of extreme cruelty, and in said action sought to recover alimony, and also to secure the care, custody and control of said children; that the plaintiff herein was duly served with summons in said action, and appeared therein and tried said cause of action, and the court found the issues for the plaintiff in said action, Mary E. Mc-Allister, and it was conclusively determined in said action that the plaintiff herein was guilty of extreme cruelty toward his wife, and was a vulgar and vicious man, and unfit to have the care and custody of said children, or any of them, and the court in said action awarded her alimony, no part of which has been paid, and awarded her the custody of said children; that since said Mary E. McAllister and her children came to the home of defendant she has been entirely penniless; and that she has not
(4) That on or about the 11th day of January, 1909, plaintiff commenced an action in the district court of Dakota county, Nebraska, against this defendant and his wife, Julia McAllister, stating the same cause of action that is stated in his petition herein; that defendant filed an answer to the said alleged cause of action in Dakota county, Nebraska; that plaintiff well knew that he had no cause of. action for the alienation of his wife’s affections, and defendant- alleges that plaintiff instituted said suits simply to harass and annoy 'the defendant, and that plaintiff’s motive is simply that of malice, and for the purpose of making the defendant all the expense that plaintiff can,' and not for the purpose of in good faith prosecuting his alleged cause of action.
Plaintiff demurred to that part of the answer pleading the statute of limitations, and also moved to strike the other parts of the answer quoted. His demurrer and motion were each overruled, and the appeal is from these rulings. If that part of the answer pleading the statute of limitations is good, that is the end of the case.' But if the ruling was erroneous, the case should be reversed. Wallace v. Ins. Co., 66 Iowa, 139. Such actions as these are ordinarily barred within two years. But plaintiff relies upon the following sections of the Code as saving his right of action. These are: Section 3451, reading as follows: “The time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation above described.” And section 3452, which reads: “When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter; but this section shall not apply to causes of action
Turning again to section 3451, it will be observed that it provides that the time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation. Does this apply to a case where the defendant was a nonresident prior to the accrual of the cause' of action and remained so until the demurrer to the answer pleading the statute of limitations was filed? This is the pivotal and only question bearing upon the matter now in hand. The proposition seems to be foreclosed by the decision in Ross v. Rees, 55 Iowa, 296. In that case defendants never resided in this state, and it was held that the statute of limitations did not run against plaintiff’s claim which accrued in another state. See, also, Stern v. Selleck, 136 Iowa, 291; Davenport v. Allen (C. C.), 120 Fed. 175; Heaton v. Fryberger, 38 Iowa, 185; Wetmore v. Marsh, 81 Iowa, 677. Somewhat in point is Lebrecht v. Wilcoxon, 40 Iowa, 93.
Defendant’s counsel rely upon some decisions from other -states to the effect that where a defendant is a non
In the latter work it is stated unequivocally that the great weight of authority sustains the proposition that an exception such as the one we are considering applies to residents and nonresidents alike. We have found three cases which are cited in support of the proposition that the exceptions do not apply where plaintiff himself is a nonresident. These are: Belden v. Blackman, 118 Mich. 448 (76 N. W. 979); Boyse v. Turnbaugh, 117 Ind. 539 (20 N. E. 486), and Wheeler v. Wheeler, 134 Ill. 522 (25 N. E. 588, 10 L, R. A. 613).
It was stated that New Jersey and Texas had adopted the rule announced by the .Illinois court, and Snoddy v. Cage; 5 Tex. 106, was cited. That case turned, however, upon the peculiar language of a statute, and is not applicable to the facts now before us. Moreover, the statute construed contained an exception in favor of a plaintiff who was contesting a will. The case from Indiana was an action to quiet title, and defendant pleaded the statute of limitations. Plaintiff, a nonresident, relied upon this stat- - ute of that state.
The time during which the defendant is a nonresident of the state, or absent on public business, shall not be computed in any of the periods of limitations.
The court said with reference thereto:
While the decision is not clear, the reporter properly analyzed it, we think, in. his syllabus, where he said that the statute quoted did not enable a nonresident who held a cause of action against a resident to profit by the fact that he, himself, was and had been a nonresident. With that conclusion we are in full accord, but it does not help the defendant in this case, for he was a nonresident at all times material to our inquiry and plaintiff is claiming nothing on account of his nonresidence. The Belden case, from Michigan, really sustains our own decisions heretofore cited. The court said in its opinion:
As to the second reason stated: If it was necessary to state in the bill sufficient facts to prevent the statute of limitations from running' against this claim, the statements contained in the demurrer supply that defect by showing the defendant does not now and never has resided in the state of Michigan. While the complainant is not bound by the statement of facts contained in the demurrer, the defendant can not complain if the court assumes they are true. It is said by counsel the statute does not apply to a right of action which accrued without the state between parties who were at the time nonresidents, but applies only to actions that accrue within the state. The courts of New Jersey and Texas sustain the doctrine as contended. Our statute is like those of Massachusetts and New York. The statutes of those states have been construed as applying to causes of action which accrued without the state between nonresidents. White v. Bailey, 3 Mass. 271; Wilson v. Appleton, 17 Mass. 180; Bulger v. Roche, 11 Pick. (Mass.) 36 (22 Am. Dec. 359); Carpenter v. Wells, 21 Barb. (N. Y.) 593; Power v. Hathaway, 43 Barb. (N. Y.) 214; Miller v. Brenham, 68 N. Y. 83. We think the last-named cases should be followed there. A bill of complaint similar to this was sustained in Earle v. Grove, 92 Mich. 285 (52 N. W. 615).
II. In view of a retrial it is thought best to consider the ruling on the motion to strike. The plea of abatement, because of another action pending, is clearly insufficient, because the action relied upon is in another jurisdiction. Schmidt v. Posner, 130 Iowa, 347.
The motives of plaintiff in instituting the action were not material or defensive in character. The fourth paragraph of the answer should have been stricken.
III. Insofar as the motion to strike applied to the second division of the answer, hitherto quoted, it was what has aptly been termed a “pruning hook,” and as a rule an appeal will not lie from a ruling on such a motion. The decree of divorce obtained by plaintiff’s wife is not pleaded as a complete defense, but in mitigation, or at least it may be so considered.” As this matter may doubtless be treated in mitigation of damages, and under the recent decision of Hamilton v. McNeill (Iowa), 129 N. W. 480, in bar of the action, the motion to strike was properly overruled.
The other part of this division of the answer probably pleaded matters of evidence and might have been stricken because of that fact; but no prejudice resulted from overruling that part of the motion attacking these allegations.