Scroggs v. Daugherty

53 Mo. 497 | Mo. | 1873

Vories, Judge,

delivered tbe opinion of the court.

This action was'brought on a promissory note.

The defendant pleaded payment, and also that the cause of action mentioned in the petition did,not accrue within ten years before the commencement of the suit.

The plaintiff replied, that the cause of action had commenced within ten years before the commencement of the suit, and also denied the payment.

The case was tried by the court, when the following fads appeared : At the time of the execution of the note, the 1st day of February, 1859, both plaintiff and defendant resided in Keokuk, in the State of Iowa, that the no.te was due and payable sixty days after date, that a short time' after the execution'of the note defendant moved to Warsaw, Illinois, where he resided until 1834, when he moved his residence to Macon county in this State, where he has ever since resided. The suit was commenced on the 28th of September, 1812. There is no pretense, that the defendant either absconded or concealed himself, or that plaintiff was ignorant of the residence of defendant.

The evidence in reference to payment is conflicting, and no point is made on that question.

The court found the issue on the plea of the statute of limitations in favor of the defendant, after making declarations of law on that subject at the request of the defendant.

The plaintiff filed motions for a new trial and in arrest of judgment, which being overruled by the court, the plaintiff excepted, and appealed to this court.

The case was determined in the Circuit Court entirely on the defendant’s plea of the statute of limitations. It is conceded, that more than ten years had elapsed after the maturity of the note and before the commencement of the action ; but it is contended by the plaintiff, that under our statute the statutory bar only commenced to run from the time that the defendant arrived in this State, and that ten years have not elapsed since that time. To sustain this view of the law, we are referred to the cases of King vs. Lane, 7 Mo., 241, and Tagart vs. State of Indiana, 15 Mo., 209. The case of King vs. Lane was decided under the statute of 1835, by the seventh section of which it was provided, that “If at the time when any cause of action specified in this article accrues against any person, he he out of this State, such action may be commenced within the times herein' respectively limited, after the return of such person to the State, and if after such cause of action shall have accrued, such person 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 court held in that case, that it made no difference whether the defendant was a resident of the State and was occasionally absent, or whether he resided altogether out of, the State, and that if the cause of action arose abroad, it was sufficient to save the statute from running until the defendant came into this State, and that the word return being used in the statute was not sufficient to limit the saving clause of the statute to residents of the State.

After this construction of the statute 'by this court, the statute of 1845 was passed, which is identical with the statute now in force. In that statute, the language of the section referred to was changed so as to read as follows : “ If at any time, when any cause of action specified in this article accrues against any person who is a resident of this State, he is out of this State, such action may be commenced within the times herein respectively limited after the return of such person into the State, &c.” The language of this section, as changed in 1845, is plain, and does not admit of any mis-eonstruction, and was evidently intended to obviate the construction given the previous statute in the case of King vs. Lane. The case of Tagart vs. The State of Indiana was decided after the passage of the act of 1845 ; but the change made in the statute was not noticed by the attorneys in the case or by the court, but the act of 1835 was referred to and relied on by the court, and the case of King vs. Lane re-affirmed, without any reference to the statute of 1845. After this de-

cisión the case of Thomas vs. Black, (22 Mo., 330,) was brought before the court, in the argument of which attention was called to the statute of 1845, and the change made in the language of the seventh section. The court carefully reviewed the case of Tagart vs. Indiana, and the decision in that case was expressly overruled, and it was then held, that-the saving clause of the statute only applied' to cases of defendants who were residents of the State at the time the cause of action accrued; and we see no room for a different construction of the statute. It follows that the court properly declared, the law, and we. think that the statute of limitations was well pleaded, and that the judgment properly rendered for the de-. fen dan t.

The other Judges concurring,

the judgment is affirmed.