55 Iowa 227 | Iowa | 1880
There is indorsed upon the note a credit of $500, dated April 29, 1871, and a further credit of $200, dated
The following provisions of the statutes of Nebraska were introduced in evidence:
Page 525, Sec. 5. “ Civil actions can only be commenced within the time prescribed in this title, after the cause of action shall have accrued.” ,
Sec. 10. “Within five years an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.”
Page 526, Sec. 20. “If, when a cause.of action accrues against a person, he be out of the State, or shall have absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the State, or while he is absconded or concealed; and if, after the cause of action accrues,c he depart from the State, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.”
Page 527, Sec. 22. “ In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise.” •
Page 534, Sec. 69. “ Service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence at any time before the return day.”
Chamberlain died in April, 1878, at Council Eluffs.
The giving of this instruction, and the refusal to give the one asked, is assigned as error. We think the action of the court is correct.
The principle upon wdiicli part payment enlarges the time within which an action may be brought is that part payment on account of a claim is an acknowledgment by the debtor of his liability upon the whole demand, and from this acknowledgment-a new promise to pay the residue is implied. Harper v. Fairley, 53 N. Y., 442. No payment can fall within this principle which was enforced by a mere proceeding i/n, rem, without any act upon the part of the debtor.
It is insisted that this instruction does not properly construe the statute of limitations of the State of Nebraska, above set out.
This instruction is in entire harmony with, and is fully justified by, Blodgett v. Utley, 4 Neb., 25, in which, construing this statute, it was held that the mere temporary absence of a debtor from the State, when he has a usual place of residence therein where service of summons can be had up>on him, does not suspend the statute of limitations.
In Seymour v. Street, 5 Neb., 85, cited and relied upon by appellant ITolly, the maker of the mortgage sought to be foreclosed, was a non-resident of the State from 1861 until the commencement of the action in September, 1869. He had been twice elected a member of the territorial legislature
Wo think the instruction follows the construction placed upon the statute of Nebraska by the Supreme Court of that State, and that it is correct.
III. It is claimed that, conceding the statute of limitations to commence to run on the 29th day of May, 1871, the evidence does not show that Milton Chamberlain had a place of residence within the State of Nebraska for five years between that date arid the date of his death, in April, 1878. We have carefully examined the testimony upon .this point, and we unite in the opinion that the finding of the jury upon this branch of the case is not so wanting in testimony to support it as to justify us in disturbing the verdict upon that ground.
IV. Certain letters written by Chamberlain in February, 1873, were introduced in evidence. It is claimed that these establish an admission of the existence of the debt at that date. • These letters were submitted to the jury under instructions to which no exception was taken. The jury did not find that the letters related to the debt in question, and the finding, we think, is clearly correct.
V. The plaintiff offered in evidence the transcript of the proceedings had in the foreclosure case against Chamberlain, in 1873. This evidence was excluded on defendant’s objection. It is claimed that it should have been admitted, as it contains an affidavit of the non-residence of Chamberlain when the action was brought, and would tend to establish that fact. The fact that Chamberlain was proceeded against as a nonresident in the foreclosure proceeding, in which he made no
Affirmed.