State v. Furlong

60 Miss. 839 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

■ Two replications are relied onto defeat defendant’s plea of the Statute of Limitations : First, that defendant had fraudulently concealed the cause of action ; second, that he had been absent from and resided out of the State.

The court properly ruled that the evidence adduced neither proved nor tended to prove a case of fraudulent concealment of the cause of action, within the meaning of the statute.

The evidence did tend strongly to show that defendant had been guilty of the grossest frauds in obtaining an allowance of his claim against the State for keeping prisoners in the county jail while he was sheriff, but there was nothing to indicate any steps taken .by him to conceal his action in that regard. His acts were matters of public notoriety and of public record, and by the exercise of due diligence on the part of the officers of the State might as well have been discovered at the time they occurred as afterwards. It is not shown that any new development of any sort led to their discovery, nor is it shown when or how they first became known. For aught that is proved, all the facts were as notorious at the time as they now are. The former adjudication in this case (58 Miss. 717), declared that in the propounding of liis claim for jail fees, he was not acting in his official character, but simply as an ordinary suitor propounding a demand against the State. Hence, we cannot say that any relation of trust and confidence existed between him and the State. Where no such relation exists, where the frauds complained of are matters of record, which the exercise of reasonable diligence would have revealed, and where there has been no affirmative conduct or declarations calculated to lull suspicion, no fraudulent concealment within the meaning of the law has been made out. Calcote v. Buckner, 28 Miss. 432.

The ruling of the court on the facts proved under the second replication to the plea of the Statute of Limitations was erroneous.

While it is true, as argued by counsel for defendant, that in order to stop the running of the Statute of Limitations, by reason of absence from the State, there must be a concurrence of absence from the State and the acquisition of a fixed residence or domicil elsewhere, this is not true where the defendant did not have in this State a residence or domicil at which a summons might be left, so as to give constructive service of process upon him. If a citizen of this State departs, leaving here a fixed and known place of abode, recognized by himself and acquaintances as his home, the Statute of Limitations will continue to run in his favor, no matter how prolonged his absence, until he has acquired a settled location or home abroad. In such a case his creditors may bring suit against him at any time by leaving the summons at his home here, and it is their own folly if they do not do so. But if a citizen of the State departs from it, having never had any fixed residence or home here, or having- broken it up by his departure, no such result will follow, for the reason that during his absence, however temporary, he deprives his creditors of all opportunity to sue. The law will never allow a debtor to so conduct himself as to prevent the possibility of his being sued, and at the same time claim that the Statute of Limitations shall run in his favor. Hackett v. Kendall, 23 Vt. 275 ; Gillman v. Cutts, 7 Fost. 348; Langdon v. Doud, 6 Allen, 425.

The defendant in this case was a bachelor and never had any home or settled establishment in this State. He usually boarded at a hotel in the city of Vicksburg, and when he left the city there was no place at which, and no person with whom, a summons could be left so as to give him legal notice of the institution of a suit against him. He absented himself from the State for two years and yet claimed the protection of the Statute of Limitations during that period, upon the ground that he never acquired elsewhere a new location, but remained all the while a citizen and resident of Vicksburg.

The claim is not maintainable.

It is insisted on behalf of appellee that' this requirement of the existence of a residence here, however wise, is not warranted by the letter of the statute, and that the legislative omission of it cannot be supplied by the court. True, it is not expressly contained in the statute, but is plainly implied by it. Sect. 2678, Code of 1880, is in these words : “If, after any cause of action shall have accrued in this State, the person against whom it has accrued shall be absent from and reside out of this State, the time of his absence shall not be taken as auy part of the time limited for the commencement of the action after his return.” Under similar statutes the courts of all the States hold that the words “reside out of the State” are equivalent to the words having a residence out of the State, and that unless the absent debtor acquires a residence beyond the State, the statute continues to run in his favor. This being true it must be that the words “ reside out of the State” (having a residence out of the State), necessarily imply the further words “not residing in the State,” or “ not having a residence in the State.” To hold otherwise would be to say that the Legislature intended to give the benefit of the Statute, of Limitations to a citizen who, having contracted a debt here, abandons his residence, and by acquiring none elsewhere defeats the debt by lapse of time, unless the creditor pursues him in person and sues him “ on the-wing.”

Certainly such was not the legislative contemplation.

The court erred in excluding testimony intended to show that appellee made excessive charges for turnkey fees and for expense of feeding prisoners. The former action of the Circuit Court iu allowing these claims does not stand upon the footing of a conclusive judgment, but rather as the prima facie settlement of an auditing officer, which the auditor of public accounts might refuse to pay until so directed by the Legislature. Code 1871, sect. 143.

Keversed and remanded.