Miller v. Lesser, 71 Iowa 147

Miller v. Lesser

71 Iowa 147 | Iowa | 1887

Reed, J.

1. Statute of limitations : action by surety against principal. When the bond was signed, which was in 1871, the parties wore both residents of the state of Ohio. It was given as security for the costs in a bankruptcy proceeding, which had been instituted by defendant. In -1873 defendant removed to Davenport, in this state, and he has since resided there continuously. In 1879 plaintiff was compelled to pay the costs which accrued in the proceeding in which the bond was given. This action was commenced in March, 188G. When defendant settled in Davenport, he assumed the name of M. Levy, and he has been known in the community by that name ever since. He is a married man, and his family came with him when he removed to this state; and continuously since his settlement at Davenport he has carried on business in his assumed name. Plaintiff’s cause of action arose when he paid the costs in the bankruptcy proceeding. ,. . . . _ , , , It arose upon the promise by defendant, which . . is implied from the relation in which the parties stood to each other, that lie would indemnify plaintiff against his liability on the bond. The action being upon an unwritten contract, the period within which it might be brought was five years. Code, § 2529, subd. 4.

2_ residence in Iowa under assumed name : inability to discover residence. When the cause of action accrued, defendant was a resident of this state. The statute, therefore, began to .run at once, unless some fact existed which susjiended its operation. In addition to the fact that defendant was living under an assumed name, it was shown that his place of residence was unknown to plaintiff, and that he had made diligent inquiry to ascertain where he lived. Did these facts prevent the *149running of the statute? We think not. The provision of the statute is explicit that the actions enumerated in it may be brought within the period specified after their causes accrue, “ and not afterwards, except when otherwise specially declared.” Section 2529, supra. This language is explicit, and there can be no doubt as to its meaning. The only exceptions to the general rule created by the statute are those which are specially declared. It is provided by section 2530 that, when relief is sought on the ground of fraud or mistake, or when the action is for trespass to property, the period of the statute shall not begin to run until the discovery of the fraud, mistake, or trespass; and section 2533 provides that the time during which a defendant is a non-resident of the state shall not be included in computing any of the periods of limitation. Other sections create exceptions in favor of minors, and in cases in which the persons in whose favor causes of action have accrued have died during the period of limitation. But no provision can be found which creates an exception in favor of* a creditor, upon the ground that he has been unable for any reason to discover the place of residence of his debtor within the period prescribed by the statute within which the action may be brought.

Plaintiff’s action, then, falls within the general rule of the statute. It does not belong to either of the classes of actions enumerated in section' 2530. Nor were either of the parties under any of the disabilities which, by the other provisions, make certain cases exceptional.

Affirmed.