National Bank of Oshkosh v. Davis

100 Wis. 240 | Wis. | 1898

Pinney, J.

The cause of action upon which the plaintiff seeks to recover accrued, it is conceded, September 1, 1890. This action appears to have been commenced as against the defendant Davis July 2, 1897, and as against the defendant Fehr July 14, 1897, a period as to these defendants of more than six years after the cause of action accrued. The action as to both of the defendants appears to fall within the purview of sec. 4231, R. S. 1878, and to be barred unless this result is avoided by the fair meaning and effect of that section, which provides that “if, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms herein respectively limited, after such person shall return to or remove to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action shall accrue, neither the party against or in favor of whom the same shall accrue, is a resident of this state; and if, after a cause of action shall have accrued against any person, he shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” The question is whether, during the statutory period of limitation, the defendants removed to, and resided within, this state, so as to be subject to the jurisdiction of our courts. This is the substance and effect of the adjudicated cases. Whiteomb v. Keator, 59 Wis. 609; Larson v. Aultman & Taylor Co. 86 Wis. 281; Parker v. Kelly, 61 Wis. 552.

The first clause of sec. 4231, R. S. 1878, provides that the limitation fixed by sec. 4222 shall not run in favor of persons out of the state. This clause, however, is limited in its operation by the clause immediately following, and the question is whether that clause applies to this case. It provides: “ But the foregoing provision [that is, the first clause of sec. 4231] shall not apply to any case where, at the time the cause of action shall accrue, neither the party agrinst or in favor of whom the same shall accrue, is a resident of this state.” In other words, the nonresidence of the defendant from the state at the time the cause of action accrued shall not prevent the statute from running if neither the party in whose favor the cause of action accrued nor the party against whom it accrued then resided in this state. Hoxie & Mellor, at the time the cause of action accrued in their favor, as well as the bank, their assignee, resided in this state, and continued to reside therein; so it cannot be said that at that time neither the party in whose favor nor the party against whom the cause of action accrued resided in this state. It is clear, therefore, that the cause of action uj)on which the suit is founded was not barred, and that the right of the plaintiff to bring the action and recover the amount due is saved by the express words of the statute. The effect of the statute is evidently to preserve to residents of this state their rights of action against nonresident debtors so long as they remain such, and until six years after they return to or become residents of the state. Nonresidents coming within the state maybe subjected to the jurisdiction of its courts, and actions may be brought to enforce demands against them; and such rights of action continue against them unaffected by the statute of limitations, so long as they neither remove to nor reside in this state. In the instant case, Hoxie & Mellor and the plaintiff, as already stated, were residents of this state at the time the cause of action accrued, as was the plaintiff bank at the time of the assignment of the demand to it, and have ever since remained residents of this state. It was the intention of the statute to preserve to residents of the state tbe protection of its laws, which say, in effect, that the statute limiting the time for the commencement of actions shall not run in favor of a debtor who resides out of the state when, as in this case, the party in whose favor the cause of action accrued was at that time a resident thereof.

Eor these reasons, we think that the statute had not barred the cause of action, and that the recovery was right.

By the Gourt.— The judgment of the circuit court is affirmed.