Kennard ex rel. McGehee v. Alston

62 Miss. 763

• Court: Mississippi Supreme Court
• Decided: April 15, 1885
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

In Maitland v. Keith, 30 Miss. 499, and Clements v. Brown, 31 , it was held that the statute of limitations was not suspended by reason of the non-residence of defendants, against whom judgments had been rendered by courts of record out of this State. This conclusion was reached by a construction of the statute of 1844, in which, after declaring limitations in certain cases, it was provided by the eleventh section, “ if any person or persons against whom there is or shall be any cause of action, as specified in the preceding sections of this act, is, are, or shall be out of this State at the time of such 'cause of action accruing, or at any time during which a suit might be sustained on such cause of action, then the person or persons who are or shall be entitled to such action shall be at liberty to commence the same against such person after his, her, or their return to this State; and the time of such person’s absence shall not be computed a part of the time limited by this act.” By a subsequent section of the act it was declared that “no action founded upon any judgment or decree obtained in any court out of the limits of this State shall be maintained in any court of this State, unless the same shall be commenced within six years after the rendition of said judgment or decree.” The court in the cases noted expressly put its decision upon the ground that the “exception was as to causes of action mentioned in the preceding sections of the act, while the limitations as to suits on foreign judgments were found in a subsequent section, the court saying in MaiÜand v. Keith, “ the' eleventh section of the act-allows the exception contended for in this case but expressly confines it to the causes of action specified in the preceding sections of the act, thereby excluding it from cases like the present, which is regulated by a subsequent section.” Section 2157 of the Code of 1871 declares that the exception therein provided for, to wit: absence from the State, shall be applicable to all cases mentioned in the chapter, and the chapter contains the limitation applicable to suits on -judgments rendered in other States. The statute of limitations never began to run in favor of the defendant in this case, because he never came into the State.

The judgment sustaining the demurrers to the plaintiff’s replications is reversed and the demurrers overruled.