| Ark. | Mar 4, 1912
Lead Opinion
(after stating the facts). The testimony of appellant Reeder and of witness Matheny tends to prove that the alleged claim for which this suit was brought would not be due until the appellee had returned from the penitentiary after serving the term of his imprisonment. According to this testimony, appellee and Wright had in contemplation that appellee would serve his term in the penitentiary, and that the balance of the fee claimed by Wright would not be due until the year for which he was sentenced had expired, or at least until the time that he should legally serve under the sentence had expired. Reeder testified that they did not contract with reference to appellee making his escape.
We are of the opinion that, according to this testimony, the amount claimed was due at the expiration of the period for which appellee was sentenced to the penitentiary. But for the fact that appellee had made his escape from the penitentiary, this action could have been commenced against him at that time, and the statute of limitations, had he not made his escape, would have commenced to run at that time also.
But section 5088 of Kirby’s Digest provides as follows:
“If any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times respectively limited after the commencement of such action shall cease to be so prevented.”
The escape of appellee from the penitentiary was an unlawful and improper act on his part, which, under the above statute, suspended the running of the statute of limitations from the time when the alleged debt was due until appellee was pardoned. The law in regard to service of summons upon convicts makes provision only for service upon convicts who are imprisoned in the penitentiary. Kirby’s Digest, § 6051. Therefore, one who occupied the status of an escaped convict, although he may have been living openly and publicly at the place where he resided before his sentence, can not set up that the statute of limitations was running during the time he was an escaped convict, nor can he complain of a lack of diligence in not serving him with summons in a civil action during such time. In contemplation of law, a convict who has escaped from the penitentiary during the period of such escape and before pardon has no usual place of abode where he may be served with process under the provisions of section 6042, subdivision 3, Kirby’s Digest.
It will be observed from what we have said that the cause was tried upon a misconception of the law.
The instructions of the court were based upon this misconception of the law, and were therefore erroneous and prejudicial. Prayers for instructions 4, 5 and 6 on behalf of appellant, in the view we have expressed, were correct, and the court erred in not granting the same.
For the errors indicated the judgment is reversed and the cause remanded for a new trial.
Dissenting Opinion
(dissenting). The majority hold, as T understand from the opinion, that an escaped convict can not plead the statute of limitations for the reason that there is no statutory provision for service of process on him. I take issue on that proposition.
Section 6051 of Kirby’s Digest reads as follows: “Where the defendant is a prisoner in the penitentiary a copy of the complaint must accompany the summons, and the service must be upon the keeper of the penitentiary, who shall deliver the copies of the complaint and summons to the defendant. And a copy of the summons must also be delivered to the wife of the prisoner, or, if he has no wife, left at the place where he resided or claimed to reside, prior to his confinement, with some person of the age of sixteen years.”
Another provision of the statute is that service may be had “by leaving a copy of such summons at the usual place of abode of the defendant, with some person who is .a member of his family over the age of sixteen years.” Third subdivision of section 6042, Kirby’s Digest.
Now, it is plain that the provisions of section 6051 are solely for the benefit of a convict while confined in the State penitentiary, and the statute requires, for his protection, that while he is confined in the penitentiary a copy of the complaint and summons must be served on the keeper for his use, and also that a copy must be delivered to his wife or other person over sixteen years of age at his former residence. If he is not confined in^ the penitentiary, but has voluntarily left it, the provisions of section 6051 do not apply, and other methods of service are sufficient, by delivering a copy to him in person or to a member of his family over sixteen years of age at his usual place of abode. It seems to me to be a peculiar state of the law that a convict is immune from process because he wrongfully leaves the place where the statute provides a method of service on him. If that method of service was exclusive, he could not, of course, be otherwise served, but I can not believe, from the language of the statute that it was so intended. As before stated, that method of service is provided for his protection, and he forfeits it by voluntarily leaving the place, and may be served by any other statutory method provided for other persons. Section 5088 only makes an exception to the operation of the statute of limitations against a person who by his wrongful act prevents the commencement of an action against him. It is not every wrongful act that operates to prevent the commencement of an action. Merely because a convict escapes from the penitentiary does not prevent the commencement of an action against him; and unless he absconds or conceals himself so that process can not be served in some of the statutory modes, the statute of limitations is not suspended. If he has a place of abode known to his creditor, and is to be found there, the statute of limitations continues to run in his favor. I fail to see how appellee’s confinement in the penitentiary and his alleged escape therefrom has anything to do with the case except as bearing on the question of evasion of the service of process; and if he was living openly at his usual place of abode, and appellant knew it, or by the exercise of reasonable diligence could have known it, the statute of limitations was not suspended.
The question as to the alleged agreement for postponement of the maturity of the debt was properly submitted to the jury.
I fail to discover any reversible error in the record, and the judgment should therefore be affirmed.