Petchell v. Hopkins

19 Iowa 531 | Iowa | 1865

Dillon, J.

stattoe wh°ens¿ C0S nm.ces By a peculiar provision of our statute (Rev., § 2962), it is enacted that the plaintiff, in his petition, may, in the first instance or by way of amendment, rely on, and state as cause of action, the matter displacing the apparent bar of the statute of limitations.

Accordingly, the plaintiff averred the time when the defendant ceased to be a resident of Ohio and first became a resident of Iowa. This was December 31, 1853. This averment of the petition is nowhere denied in the answer. The present action was brought within ten years after the .time when the defendant became a resident of this State.

But it was not brought within fifteen years (the time mentioned in the Ohio statute pleaded), or within ten years (the time fixed by our statute) after the maturity of the note;

Now, the defendant must rely either upon the bar of the Iowa statute or of the Ohio statute. This has been determined by this court in tbe case of Sloan v. Waugh (18 Iowa, 224). And see, in addition to tbe authorities there cited, Smith v. Crosby, 2 Texas, 414, 1847; Hays v. Gage, Id., 501; 2 Kent Com., 462, 463; Story’s Confl. Laws, 577; Tapper v. Nash, 1 Caines’ Cases, 402. And see, also, cases cited below. '

Our statute (§ 2740) makes ten years a bar to actions upon notes, but a subsequent section (2745,) declares that “the time during which a defendant, is a non-resident of the State, shall not be included in computing the period of limitation.” .

The action may, therefore, under section 2745, be brought at any time within ten years after the defendant becomes a resident of this State. Pratt v. Hubbard, 1 G. Greene, 9; and see Darling v. Wells, 1 Cush., 508, second case there reported, Movart v. Bates; Tagart v. The State, 15 Mo., 209; Tissell v. Blackwell, 6 N. H., 557; Dwight v. Clark, 7 Mass., 515.

■ Under sections 2740 and 2745, the action under the averments in the amended petition, as to residence of the defendant, was (so far as those sections are concerned), brought in time.

_ofan or'coimlto try' But it is by our statute further provided, that “ 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, Eev.,'-§ 2746. It is upon this section that the defendant’s counsel chiefly relies. The purpose and effect of this section have been considered in the case of Sloan v. Waugh, above cited, , to which we refer.

Under this section the bar of the other State or country (if this be relied on) must be complete by the laws of such State or country. The cause of action must be “fully barred; ” and it must be barred during the time the defendant has resided there, at least the bar must be complete previous to the time the defendant becomes a resident of Iowa. The defendant, “ previously" to coming into this State, must have “ resided ” in another State, by the laws of which the cause of action must have been 11 fully lar red."

The action accrued in 1844. The Ohio statute required fifteen years to bar it — that is, it gave the plaintiff that period in which to sue in that State. The answer was defective in not showing when the defendant left that State, and became a resident of this: in other words, in not showing that the action was, by the laws of that State, fully barred before the defendant became a resident of this State.-

In consequence of the defendant’s leaving Ohio (as averred in the amended petition), the plaintiff did not, have the full fifteen years given by the laws of that State in which to bring his action, since the claim was not fully, barred by the laws of Ohio.

In consequence of the defendant not having been a resident of Iowa ten years before suit brought, the plaintiff was not barred by our statute. The court should have sustained the demurrer. For this reason, its ruling is reversed and the cause remanded, with leave to defendant to answer if he shall be so advised.

Eeversed.