Robinson v. Moore

76 Miss. 89

Opinion

Whitfield, J.,

delivered the opinion of the court.

Appellant, in Pulaski, Tenn., ón June 26, 1889, executed the note sued on, payable to appellee, in renewal of an indebtedness which had originated in Mississippi, making the note payable in Macon, Mississippi, at the Farmers’ & Merchants’ Bank. At the' time this note was executed, and ever since, appellant was and has remained a citizen of Tennessee, and appellee was and has remained a citizen of Macon, Mississippi. The note was payable one day after date. Suit was instituted by attachment, July 21, 1896, more than six years after the maturity of the note. Appellant pleaded the six years’ bar of §2737, code of 1892, and the six years’ bar of the statute of Tennessee, in connection with § 2754 of the code of 1892.

Let us treat these defenses in order. To the plea of the bar set up by § 2737, the plaintiff replied the exception contained in § 2748, code of 1892, and this presents the question whether the absence and nonresidence provided for in § 2748 applies to the case of one who is absent from and resides out of the state by reason of never having been in the state, as well as to the case of one who is absent from and resides out of the state by reason of having gone out of the state and acquired a residence abroad ‘after the cause of action accrued in this state. Can a citizen of Tennessee plead the statute of limitation of Mississippi, on a Mississippi contract, against a citizen of Mississippi, when he has never been in the state or within reach of the process of its courts ? Appellant involves himself, at the threshold, in the unreasonableness of admitting, as he must, that, had he resided in this state half the period of the bar, and then absented himself from the state and acquired a residence abroad, he could not plead the Mississippi statute (§ 2737), and yet contending that, though he has always absented himself from the State of Mississippi, and had his residence in Tennessee, he may plead it. This would impute to the legislature the absurdity of allowing a nonresident a larger protection under a Mississippi statute of limitations (§§ 2737, 2748, and 2754) than the resident of the state has. In other words, the debtor who never was in the state could defeat his creditor by pleading the six years’ statute, but the resident debtor, against whom a cause of action had accrued and who had left the state, could not so defeat his creditor if he came back into the state, and was sued here, after his return, ten years after the accrual of the cause of action. Such a construction of the law would be monstrous.

We regard the case of Kennard v. Alston, 62 Miss., 763, as decisive of the correctness of our view that § 2748 applies as well to one who never was in the state as to one who, being here, had gone and resided abroad. In that case suit was brought against a nonresident, in 1884 (when the code of 1880 governed, in which the law of §§ 2748 and 2754, code 1892, was first introduced), upon a judgment rendered in New York in 1872. The defendant pleaded the seven years’ bar against actions on foreign judgments, provided by § 2675, code 1880, just as here § 2737 is pleaded. The plaintiff replied that the defendant had been absent from the state and a nonresident continuously since the rendition of the judgment. The contention was, manifestly, that the exception contained in § 2768, code 1880 (identical with § 2748, code 1892) applied to the case-of one who had always been absent from and resided out of the' state; and that contention was sustained, the court deciding-as the only point before it for decision, that the defendant was. not protected by the bar, because he had never been in the= state. Without such construction, the decision was compelled to have been otherwise, for the code of 1880 governed as to the remedy, and the suit was brought in 1884. And we think the decision, on the statute, and on reason and principle, correct.

Appellant cites Pindell v. Harris, 57 Miss., 739, and Lindenmayer v. Gunst, 70 Miss., 693, as announcing a different construction of § 2748, but a careful reading of those cases 'will show that the state of case presented here, :and in Kennard v. Alston, was not in the mind of the court, and what was in those cases said was not applicable here. Pindell v. Harris was decided before Kennard v. Alston, and the only question decided therein (a case, too, where the debtor was a resident of Mississippi when the cause of action accrued) was whether the time of Mrs. Harris’ five months’ visit to Mississippi was to be counted. And it is, of course, obvious that in Lindenmayer v. Gunst, 70 Miss., 693, Mr. Payne’s tenant in possession could have been sued in ejectment at any time during the ten years which were allowed to elapse without suit. Section 2748, of course, had no application, but not for the reason stated. Kennard v. Alston is the only decision we have on the precise point here involved, and it is square decision.

The argument based on the use of the word 1 £ return, ’ ’ in § 2748, was answered in Estis v. Rawlins, 5 How. (Miss.), 258, by Sharkey, C. J., wherein the court, construing clause 12, p. 827, Hutchinson’s code, where it is used in an identical connection, held that the exception applied as well to absence or .absence and nonresidence of one who had never been in the state, .as to absence or nonresidence of one who left the state after the cause of action accrued. Said the court: ££ The reason and justice of the enactment apply as well to those who have never been in the state at all, as to those who have not been in it since f he cause of action accrued. It was evidently intended that the .remedy should not be barred until there had been ample time ;and opportunity to enforce it, under the laws of the state. Until the defendant came within the jurisdiction of our courts there was no such opportunity. The only remedy in this case was by personal action; that did not exist until the defendant was subject to the jurisdiction of the state courts, and, of course, it could not be barred until it had an existence.” Section 12 of Hutchinson’s code, p. 827, provided, therefore, as thus construed, at the time, for the case of absence, or absence and nonresidence, whether existing at£ £ the time of such cause of action accruing, ’ ’ or £ £ at any time during which a cause of action might be sustained. ” In the codes of 1857 and 1871 (§ 2157, code of 1871) these two categories were put into separate clauses by the legislature, of course with the construction placed upon them in Estis v. Rawlins, interpreting them. The first clause of § 2157, of code of 1871, provided thus for absence or absence and non-residence, existing at the time the action accrued. The second, for such absence and nonresidence after the cause of action accrued. The thing dealt with was such absence or absence and nonresidence, as the case might be, whether existing when the cause of action accrued or afterwards, and the time of such absence, or of such absence and nonresidence, as the case might be, was to be deducted, whether it existed in the case of one who never had been in the state at all, or in the case of one who, having resided here, absented himself from the state and acquired a residence abroad, after the cause of action accrued. He who never had been in the state was as much absent from and residing out of the state as one who had resided here but had gone out of the state and acquired a residence elsewhere. The case of either satisfied the language of §2748, and both were, as in Estis v. Rawlins, within the reason of the statute. •

Withers v. Bullock, 53 Miss., 541, does say that §12 of Hutchinson’s code, p. 827, related to absence alone, and, hence, that the construction of it, in Ingraham v. Bowie, 33 Miss., 17, was not applicable to the case of a nonresident. But Ingraham v. Bowie, rested on Estis v. Rawlins, which was not referred to in Withers v. Bullock, and which expressly declared that § 12 of Hutchinson’s code referred as well to nonresidence and ab sence as to mere absence. Whatever may be the true rule on the point for decision between Ingraham v. Bowie and Withers v. Bullock—the aggregating and deducting of periods of absence in the cases of absentees and nonresidents—we do not think that rule material here. It cannot be doubted that it never was the purpose of the legislature, in enacting §§ 2748 and 2737, code 1892, to provide that a resident of Mississippi was to be barred from suing, on a Mississippi contract, payable in Mississippi, the debtor who had always been absent from and resident out of Mississippi by the lapse of six years from the accrual of the cause of action. That would, as stated, give the nonresident debtor larger protection under the statutes than the resident debtor, and would, besides, impose upon the creditor the duty of ascertaining the residence of the nonresident debtor, in whatever part of the earth resident, and suing him there, and all within six years. We therefore hold the plaintiff not barred under §§ 2737 and 2748 of the code of 1892—the Mississippi statutes.

We turn now to § 2754, in connection with the Tennessee statute. The history of this section (2754) is as follows: In Perkins v. Guy, 55 Miss., 153, the creditor and debtor had both resided in Tennessee, where, also, the cause of action had accrued, for the full period of the bar—six years—and for two years thereafter, without suit. After the death of the debtor, the creditor sued Perkins, the administrator of the debtor, who was a resident of Mississippi, and the defendant set up the Tennessee statute of six years. This was disallowed, our statute of limitations—the statute of the forum—being held to apply. The court threw out the suggestion that “ whether it would not be wise to alter the rule where both parties were resident in another state, whose statute had barred the remedy, ’ ’ was not worthy of the serious consideration of the legislature. This was in 1877. And when the code of 1880 was adopted, in response, presumably, to that suggestion, § 2684 of the ccjde of 1880 (§ 2754 of the code of 1892) was enacted, and the first clause of §2157 of the code of 1871 was dropped; and in §2678 of the code of 1880 (§ 2718 of the code of 1892), the words “in the state” were for the first time introduced after the words £ £ if after any cause of action shall have accrued. ’5

It is insisted by appellant that the dropping of the first clause of § 2157 of the code of 1871 shows that thereafter the time of mere absence, or of absence and nonresidence, was never to be deducted,, save only in the case of one who, after a cause of action accrued against him here, removed from the state and acquired a residence abroad. We think the sound view is that it was dropped because of the necessary conflict between it and § 2751 and § 2678, code of 1880. Under the first clause of § 2157, the time of absence, or absence and nonresidence, was to be deducted. Under § 2678, such time was, in the cases provided for by it, not to be deducted. They could not stand together. After it was dropped, the time of such absence and nonresidence was to be deducted in all cases where the resident debtor, against whom a cause of action accrued, absented himself from the state and acquired a residence abroad, and also in the cases where a debtor had always been absent from and resided out of the state, except as qualified by § 2681 •(§ 2751, code of 1892).

Looking now to said § 2681, it is clear, on its face, that it applies, as held in Railroad Co. v. Pool, 72 Miss., 490, to the £ £ case of a nonresident protected by th6 bar of the statute of limitation of the state or county.in-which he has resided against a cause of action there arising, who afterwards moves into this state.” Whether it means, as counsel for appellee insists, that plaintiff and defendant (“both parties,” as said in Perkins v. Guy) must have resided in the same state (where the cause of action accrued) till the bar of that state has attached or not, it is certain that it means the bar of the other state can be set up by the debtor, when sued here, only in case he has come here to reside, and does reside here. Whatever the object of the statute, whether to encourage immigration or not, that is its plain decaration.

Yery ingenious arguments are made on both sides as to where a cause of action accrues. There is much force in the view of appellee that the cause of action accrued in Mississippi, where payable, and that hence it did not accrue in Tennessee, and for that reason § 2754 does not apply. In Indiana and Maryland the statutes expressly provide that absence and nonresidence shall not be deducted where the cause of action arises in the state, and the defendant is then absent or nonresident, if the creditor shall sue, within the time limited, after the defendant’s presence in the state. Wood Lim. Act., sec. 244; Wood v. Bissell, 108 Ind., 231 (9 N. E., 425). But on this point we decide nothing, resting our decision on the ground that the defendant has never resided in this state. We do not, therefore, think that the appellee is, on the facts of the case, barred by § 2754 and the statute of Tennessee. As to the other assignments of error, it is sufficient to say that we find no reversible error.

Affirmed.