Lindauer Mercantile Co. v. Boyd

70 P. 568, 11 N.M. 464

• Court: New Mexico Supreme Court
• Decided: August 28, 1902
• Docket: No. 918
• Status: Published

Opinion

OPINION OP THE COURT.

BAKER, J.

There are two propositions presented in this case: First, is the action in the Oonrt of Letters res judicata? and, second, was the canse of action barred by the statute of limitations?

1 . To make a matter res judicata there mnst be a concurrence of the four conditions following, viz.: First, identity of the subject-matter; second, identity of cause of action; third, identity of persons and parties; and, fourth, identity in the quality of the persons for or against whom claim is made. 21 Am. & Eng. Ency. Law (1 Ed.), 227. This seems to he so elementary that it- does not require further citation. However, notes to the citation are very full and clear. It will be observed by a reading of the petition in the Court of Letters that that suit was upon a contract between Sigismund Lindauer and John J. Boyd, wherein the said Lindauer covenanted and agreed to pay the debts of Mr. Boyd; and the contract also authorized Mr. Lind-auer to dispose of a large number of cattle, etc. The petition being the only pleading brought to this court, we can only anticipate that there was a denial of the facts in the petition, or a confession of them. The judgment by the Court of Letters, if there was a judgment, could be no broader' than the issue presented by the pleadings. It will be observed that the note in controversy in this case, was in no wise a part of the issue presented by the pleadings in the Court of Letters. The plea of res judicata is not within the requirements to make the matter pleaded res judicata.

We are of the opinion that the records of the Court of Letters do not show a former adjudication of the subject-matter or of the parties, even if there had been a final judgment in the Court of Letters, which it is not necessary for ns to decide. The trial court committed no error in excluding the plea as res judicata.

2 Was the cause of action barred by the statute of limitations? The agreed facts are as follows: At the date of the execution of this note, and ever since, John J. Boyd has been a resident of the Republic of Mexico, and J. G. D. Boyd, a resident of the State of Texas; but these parties were in Deniing, New Mexico, when this note was made. Our statute provides, section 2913, Civil Procedure, Compiled Laws of New Mexico, 1897: “The following suits or actions may be brought within the time hereinafter limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially provided.”. Section 2915, provides, “Those (causes of action) founded upon any . . . promissory note . . . within six years.” Were this all the statute law on the subject, it is obvious appellee’s cause of action was barred, when action was commenced. It will be remembered that the note was dated May 4,1891, due on the day after date, and this action commenced on May 31, 1898, more than six years having elapsed after the maturity of the note or the cause of action accrued. The appellee contends that by virtue of section 2921, Civil Procedure, Compiled Laws of New Mexico, 1897, and the facts in this case, this cause of action was taken out of the general statute of limitations. Section 2921, supra, reads as follows: “If, after a cause of action accrues, a defendant removes from the Territory, the time during which he shall he a non-resident of the Territory shall not he included in computing any of the periods. of limitation above providedTo bring this cause within the exception, it must appear, first, that at the time the cause of action accrued, the appellants, were residents of this Territory; and, second, that thereafter they departed therefrom. Embrey v. Jemison, 131 U. S. 336. This was an action upon contract. The defendant pleaded the statutes of limitations, and other defenses, alleging that the cause of action did not accrue-within five years next before the commencement of suit, that being the timé within which, by the general statutes of limitation of Virginia, actions of this kind must be brought. “To this plea the plaintiff replied specially that he ought not to be bound by anything therein alleged because when . . . the causes of action in the declaration mentioned accrued to him, ‘the defendant had before resided in the State of Virginia, and by departing without the same, obstructed, etc. The defend-, ant rejoined that the plaintiff ought not by reason of anything in the replication alleged, to have and maintain his action, because by his removal from the State of Virginia and departing without the same, as alleged, he did not obstruct the plaintiff in the prosecution of his suit upon the alléged causes of action in the declaration mentioned, because such removal occurred in the year 1859, a long time before any of the alleged causes of action existed or accrued; and that token said causes of action accrued to the plaintiff-, the- defendant was and still considers himself a citizen of the State of Louisiana. Upon plaintiff’s motion, the rejoinder of the defendant was rejected upon the ground that the above section excepted from the general act of limitations a case in which the cause of action accrued against a person previously, no matter how long before, residing in Virginia, although he may have left the State before the contract sued upon was made, and therefore, before any cause ■of action thereon accruedMr. Justice Harlan, speaking for the court said: “We are of the opinion that the rejoinder to plaintiff’s replication to the plea of limitations was improperly rejected. It shows upon its face that the defendant’s removal from Virginia occurred nearly twenty years before the contract in question was made, and that when the plaintiff’s causes of action accrued, he toas not a citizen or resident of Virginia, but of Louisiana.” The court further says: “The statute, so far as it relates to obstructions caused by the defendant having departed from the State, means that, being a resident of Virginia, when the cause of action accrues-against him} and "being then suable in that State, the defendaAvt shall not in computing the time in which he must be sued, have the benefit of any absence caused by his departure after such right of action accrued, and before the expiration of the period limited for the bringing of suit. The plaintif was at liberty to sue the defendant wherever he could find him.” The statute of Virginia in force at the time the case of Embrey v. Jemison was brought,-,is as follows: “Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such person shall be departing without the same, or by absconding or by concealing himself or by any other indirect ways or means obstruct the-prosecution of such right . . . the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted.” The opinion of the Supreme Court in Em-brey v. Jamison, supra, fixes the date of the accrual of the cause of action as the point of time when the defendant must be a resident of the State of Virginia to bring him within the exception. While the Virginia statute is not like the statute of New Mexico^ yet the essential thing, as to the whereabouts of the defendant at the time the cause of action accrues, is the same; in other words, the defendant must be within the jurisdiction of the court and suable at and prior to the time of his departure in order to set the statute of limitations in motion, and if he were not within the jurisdiction of the court; that is, within the Territory, at the time the cause of action accrued, he was not within the exception; hence the application of the general statutes of limitation. The statute of West Virginia is identical with that of Virginia, and the court of West Virginia, in Walsh v. Schilling, 10 S. E. 54, sustains this position. In Orr v. Wilmarth, 95 Mo. 212, the court construed the following statute (section 3236, Mo.) : “If at any time when any cause of action hereafter specified accrues against any person who is a resident of this State, and he is absent therefrom, such action may be commenced within the times herein respectively limited after the return of such person into the State, and if after such cause of action shall hare 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.” Referring to the second clause of the section, the court said: “That clause . . . has no application to a case where the defendant was a non-resident, when the cause of action accrued.” In Zoll v. Carnahan, 83 Mo. 42, the court said: “that to bring a case within this exception, the proof should show two facts: First, that at the time the cause of action accrued, the debtor was a resident of this State, and, second, that thereafter he departed from mid resided out of the State. This is clearly the meaning of the clause in questiont for the whole section proceeds upon the hypothesis that the debtor toas a resident of this State when the cause of action accrued.” Reading the last clause of section 3236 of the Missouri statute, and section 2921 of our statute, supra, it will be observed, that, as to the time that the defendant must be in the Territory or State and the departure therefrom in order to bring the case within the exception, they are identical in meaning. It would seem as though the Legislature which prepared the bill, of which section 2921, is a part, took it bodily from the last clause of section 3236 of the Missouri statute, clothing it in different words. Huff v. Crawford, 88 Tex. 368, 63 Am. St. Rep.; 19 Am. and Eng. Ency. of Law (2 Ed.) 229.

In Stern v. Bates, 9 N. M. 291, we are confronted with the following language: “The phrases used in this section with respect to a defendant removing from the Territory, and excluding the time tohile he is a non-resident, are meaningless, and can not apply to foreign'judgment debtors.” This language refers to section 2921, supra. The ease of Stern v. Bates, supra, was a suit upon a foreign judgment, and if tbe learned judge used the expression that the phrase referred to in section 2921 was meaningless as applicable to- the facts in that case, we can pass the matter by; but, if the expression is intended to mean generally that “with respect to a defendant removing from the Territory and excluding the time while he is a non-resident, are meaningless,” then we can not agree. There is no ambiguity in the language used in section 2921 of our statutes. The language is in common words, clear and explicit. Whether or not it is a just or wise law, it is not for us to say. It is not for the court to legislate, nor is it for the court to repeal legislative enactments. While the court has the physical power to annul legislative enactments, it has no legal or moral right so to do, and such assumption of authority is thoroughly obnoxious to our form of government, and ought never to be indulged in. We must overrule the case of Stern v. Bates, or Embrey v. Jemison, supra. It is better that we lay aside our pride and overrule our own court, rather than attack the highest tribunal in the land.

For the reasons given, the court is of the opinion that the said note sued upon was barred by the statutes of limitation when sued upon. It being agreed and stipulated by the parties that if the court should so hold, final judgment should be entered in this court; it is therefore ordered and adjudged by the court that judgment be entered in this court for appellant and for their ■costs.

Mills, C. J., M'cFie and McMillan, JJ., concur.