41 Wash. 531 | Wash. | 1906
Lead Opinion
On the 17th day of February, 1897, a judgment was rendered and entered in the superior court of Spokane county in favor of respondent, a national bank doing business in Omaha, in the state of Nebraska; said judgment being against Emma A. Lindsay, this appellant, and her husband, Milon S. Lindsay, for the sum of $12,972. At that time appellant and her husband were, and ever since have been, residents and citizens of the state of Idaho, residing there continuously. This action was commenced on the 5th day of March, 1904, as a common law action based upon said judgment. Certain defenses interposed by said Milon S. Lindsay were held by the lower court to be good and sufficient, and the action was
The only question presented is as to the statutes of limitation. Appellant maintains that, as she was a resident of Idaho at the time the judgment sued on was made and entered in this state, she could have been immediately sued iu Idaho upon said judgment, and that consequently the statutes of limitation in Idaho began to run at that time, and that, as six years had expired prior to the commencement of this action, the latter is barred. She maintains that this action “arose” in Idaho, for the reason that, at the time of the entry of the judgment which constitutes the subject-matter of tbis suit, she could have been sued iu Idahoi aud in no other state, inasmuch as the courts of no other state could have had jurisdiction both of the subject-matter aud her personally.
Respondent maintains that the cause of action arose iu this state; that the judgment was taken iu a suit by consent of the appellant and her husband, and that they were, for all legal purposes, deemed to have been present and residents of the state .of Washington at the time said judgment was entered; and that, even if they be not deemed to have been present and residents of tbe state at that time, nevertheless the fact of the court’s then aud there having jurisdiction of the subject-matter, and having properly and legally made and
“If the cause of action shall accrue against any plerson who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited after the return of such person into the state, or after the time of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action,”
and urges that Bal. Code, § 4818, avails appellant nothing in this case.
Appellant contends that § 4808 is not applicable as against her in this case, for the reason that she never was a resident of this state, and that said section could only apply where the defendant was a resident of the state at the time the cause of action arose, and left afterwards. This court has construed § 4808 as applicable not only to persons who have resided in the state and then removed therefrom, but also to those who have never at any time resided within the state. Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767; Weber v. Taney, 7 Wash. 84, 34 Pac. 473. Such construction having been adopted and followed for so long a time must be controlling now.
This leaves only the question as to whether or not § 4818 is available to appellant, and that must be ascertained by a
The judgment of the superior court is affirmed.
Mount, O. J., Dunbae, Rudkin, and Hadlet, JJ., concur.
Dissenting Opinion
(dissenting) — The cause of action was not the judgment sued on, but the contract which gave rise to the judgment. It did not, therefore; accrue in this state, and the plea of the statute of limitations of Idaho should have prevailed. For this reason I dissent from the conclusion of the majority.
Cbow, J., concurs with Fullekton, J.
