*1 Tubbs, v. Davis Myers, S.D. N.W. materials, recovery for cases, justify In such owner. passed title has it thereto must be found & Produce Creamery v. Mandan Kopald Electric Co. determ trial court must is supra. question This claim, other plaintiff’s ine. are no services included There engineering. than $300 necessary, being so

A reversal for a retrial issue, pass- we have not may determine the contractual court was valid. lien assignment plaintiff’s ed on the from reversed. judgment appealed All the Judges LEEDOM, J.,

RICE, Judge, sitting disquali- Circuit fied. SHAFER, BUSBY, Respondent Appellant B.

BERT SHAFER, BUSBY, Appellant Respondent MARJORIE (66 910) N. W.2d (File 1954) Opinion filed Nos. 9458-9460. November *2 City, Rapid for Defendant and Lynn, & Whiting, Wilson Appellant. , City, Rapid Re- for Plaintiffs and Costello,

Hanley & spondents. brought

ROBERTS, J. These actions were to recover injuries damages persons property to in sustained in public highway Pennington collision which occurred on a County, August Dakota, 21, 1946, South on auto- between of mobiles nonresidents. The two actions were not com- April 3, process menced until when of was pursuant made to statute, the nonresident motorist service provides operation 33.0809. SDC That statute that the upon highways motor vehicle of this state a nonresident equivalent appointment be deemed shall to an of the secre- tary attorney upon of to be his true and lawful may process any against growing be served him out operation resulting per- of such of a motor vehicle in loss to property operation signi- son or and such shall be deemed agreement any against may fication of his that him legal validity be so served and have the same force and as if upon personally. served him interposed

Defendant the defense statute of prior limitations had run commencement of the actions. Supp. prescribes three-year SDC 33.0232 limitation on an personal injury six-year and limitation on an ac- injury personal property. Supp. pro- tion for to SDC 33.0203 against any vides: “If when the cause of action shall accrue person state, he shall be out of the such action com- be respectively menced within the terms herein limited after person state; the return of such into this and if after such depart accrued, cause of action shall have shall of reside out the time of his absence shall limited for time any of the part not be deemed or taken as action; provided the commencement of such for the to an action apply section shall not visions the foreclosure any mortgage, or to real estate foreclosure Defendant advertisement.” mortgage by real estate accrued, when the actions within the state temporarily was and has since continued a week left the state but within Arizona. The trial court concluded reside the state the time of defend- of the meaning of the causes from the state since the accrual ant’s absence Defendant of the statute. running suspended of action ruling. reversal of this asking a appeals *3 run tolling 'the The intent of these provisions prevent of limitations is to ning of the statute from the merely by absenting himself defeating just claim him and thereby prevent process upon state and for the com the full of limitation give plaintiff period un policy of his action. A court look to the mencement place interpretation a statute and on it a reasonable derlying rather than defeat accomplish purpose will best literally though language. it even not within its Read 298, County, 269. Recognizing Jerauld 70 S.D. 17 N.W.2d Swafford, construction, rule of in Froelich v. this court 476, 893, 35, 479, party 35 S.D. said: “Where a has, in the through complete courts remedy wrong for the redress of a or the adequate remedy the enforcement of which is un- right tection of a —a by the from such state of the one against affected absence not, he his to relief —such absence does makes claim 33.0203], supra, [SDC extend the time with- under section 69 an action to enforce his bring rights”. in which he must generally Decisions in other states are to the effect remedy complete and unaffected party that when the the defendant from the state a stat by the absence of Am.Jur., 34 Limitations Ac application. ute is without C.J.S., Actions, 212; tions, 221; Limitations of see num 54 § in 94 A.L.R. 485 119 cases cited Annotations erous 331, majority with this view the A.L.R. 859. And accord by is made statute for provision reason that where decisions a state official in cases process upon substituted service of

431 the the arising provision out motor accidents within resided as if he makes the defendant as amenable to nullifying any the state and has the effect of v. McMinn suspending of limitations. Arrowood period 566, County, 562, 855; 121 119 A.L.R. 173 Tenn. S.W.2d 643, 70; Coombs v. 116 166 A. v. Death Darling, Conn. Scorza Cir., Holthaus, erage, 660; 8 208 F.2d Kokenge 243 Iowa 571, 711; 600, 52 Dairy N.W.2d v. Tuell 250 Peters Ala. 344; Richardson, 504, 35 So.2d Nelson v. Ill.App. N. 17; 76, Rosenfield, E.2d Reed v. Vt. A.2d see also Annotation in page 17 A.L.R.2d at record,

Under the by facts disclosed the actions were barred the statute of limitations.

Accordingly, judgments are reversed.

SMITH, J., LEEDOM, JJ., P. and SICKEL and RUDOLPH, J., dissents.

RUDOLPH, J., (dissenting). our decision Following in the of Raymond Barnard, case 28 N.W.2d enacted single exception to the rule provided by SDC 33.0203. Ch. Laws 1949. ma- jority opinion now writes into the statute another exception. is my It view that such usurps legislative func- “* * * * *4 tion: express exceptions made, where are legal presumption is that did not intend to save other cases from the operation of the statute. In case, the inference is a one strong that no other ex- ceptions intended, were and the rule generally applied that an exception ain statute applied is exception a statute amounts to an affirmation application * * provisions to all other cases not excepted, Am. Jur., Statutes,