1 Iowa 498 | Iowa | 1855
Section eight, of the “act for the limitation of actions, and for avoiding vexatious lawsuits,” approved Eeb. 15, 1843, is as follows.: — “ That if any person .or persons, against whom there is, or shall be, any cause of action, as specified in the preceding sections of this act, except real or possessory actions, shall be out of this territory at .the time of the cause of such action accruing, or at any time during which a suit might be sustained on such cause of .action, then the person or persons who shall be entitled to such action, shall be at liberty to bring the same against such person ox persons after his, herj or their return to this territory; and the time of such person’s absence, shall not ' be accounted or taken as part of the time limited by this .act.”
It is clear, that if the time during which .defendant was absent, is to be excluded, then his plea cannot be sustained. Whether it shall, or shall not, depends upon the construction to be given to the above section, and especially the words, “out of the territory,” therein contained. What, then, is the meaning of these words, as here used ? Were we governed alone by the strict literal language' used, it would perhaps be indisputable, that if the defendant was absent in person, without reference to his residence, such absence must be excluded. To follow such literal construction, however, would in many cases be improper, and defeat the clear intention of the law. The intention of the legislature, and the object of the law, axe cardinal considerations in .the construction of .any given statute. So, also, we must
To our minds, tbe object of this eighth section was, that a plaintiff should not be barred of bis action by tbe lapse of six years, if bis right to his remedy was suspended by tbe absence of tbe defendant. When that right was not suspended, however, then there is no reason why be should' claim that tbe time did not run. By tbe provision above referred to, bis right to proceed with bis action, and merge bis demand into a judgment, was just as perfect and complete, where tbe service was made by copy left at tbe usual place of abode of tbe defendant, as if served by reading to tbe defendant. Where tbe family of tbe defendant remains at tbe usual place of abode, and be is absent temporarily, or on business, we do not think be is out of tbe state, within tbe meaning of tbe said exception. Had tbe defendant been absent with bis family, or bad bis family been scattered, or in a condition that no service could have been legally made, then it would have been entirely different. In such case, tbe opportunity for service would have been entirely suspended, and reason, as well as legal rules, would dictate that tbe plaintiff should not be affected 'by such absence. Not
The eighth section of the statute of Connecticut of 1838, uses the words “ without this state.” In the construction of
The case of Vanlandingham v. Huston, 4 Gilm. 125, was decided upon a statute precisely similar to ours. The facts of the case are not developed', and it is, therefore, not so satisfactory as an authority, as it otherwise would be. This language is used, however, which is in entire accordance with the construction given in this opinion. Says Koekner, J. r “-Under our statute, the inability of the creditor to have personal service on his debtor, seems to be. made the sole ground for arresting the statute.” See also,. Abbeo v. Higgins, 2 G. Greene, 535.
Without referring to other authorities, we think the above sufficient, aside from the reason of the rule, to justify'us in holding the matter set up in defendant’s rejoinder, as sufficient.
We are referred by appellee’s counsel, to the cases of Ruggles v. Keeler, 3 Johns. 263; Byrne v. Crowningshield, 1 Pick. 263; King's Administrator v. Lane; 7 Missouri, 241 and Ford v. Babcock, 2 Sandf. Sup. Court, 524. As we
The appellee further claims, that if the construction above given, answers all the purposes of the exception, so it would whenever defendant left property exposed, sufficient to satisfy the debt. But by such judgment, where property only was attached, without service, it is sufficient to say, the defendant would not be personally bound. The plaintiff might, in such case, obtain a judgment, so as to bind the property attached, but it could have no further validity. It could not be enforced against other property of the defendant, nor be evidence of a judgment recovered in any suit brought thereon, .in any other tribunal, so as to justify recovery. In this lies the distinction, and we think it clear
Judgment reversed.