Armfield v. Moore

Citation2 S.E. 347,97 N.C. 34
PartiesARMFIELD and another v. MOORE.
Decision Date16 May 1887
CourtUnited States State Supreme Court of North Carolina

Appeal from superior court, Union county.

E. C Smith, for plaintiffs.

D. A Covington, for defendant.

MERRIMON J.

The plaintiffs brought this action on the twenty-eighth of October, 1886, before a justice of the peace, to recover the money due upon the note under seal of the defendant for $61.93, dated the twenty-third of February, 1876, and due at one day from date, bearing interest at the rate of 8 per centum per annum from the eleventh of October, 1875. This note was executed in the town of Monroe, in this state, and at the time of its execution the maker thereof (the defendant) was a non-resident of this state, and he has been so ever since that time, but two or three times each year he came to the town mentioned above to market, remaining a day or two each visit. The plaintiffs, the obligees of the note sued upon, have been continuously residents of this state since before its execution. The defendant pleaded and relied upon the statute of limitations barring actions upon sealed instruments after 10 years next after the cause of action upon the same shall have accrued. The justice of the peace gave judgment for the plaintiffs, from which the defendant appealed to the superior court, where there was judgment again for the plaintiffs, from which the defendant appealed to this court.

The plaintiffs contend that inasmuch as the defendant was continuously a non-resident of this state and absent from it except for two or three brief business visits of a day or two each year, before the action was brought, the statute of limitations does not bar his right to recover the money specified in the bond sued upon, and the interest due upon the same; and we are of that opinion.

The statute (Code, § 162) provides that "if, when the cause of action accrue or judgment be rendered or docketed against any person, he shall be out of the state, such action may be commenced or judgment enforced, within the time herein respectively limited, after the return of such person into this state; and if, after such cause of action shall have accrued or judgment rendered or docketed, such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action, or the enforcement of such judgment." It will be observed that this statutory provision prescribes and embraces three distinct cases in which the statute of limitations will not operate as a bar because of the continuous lapse of the time prescribed next after the cause of action accrued or judgment was rendered or docketed. (1) Where the debtor was out of the state at the time the cause of action accrued or the judgment was rendered or docketed. This case may apply alike to a resident or non-resident debtor. In it time does not begin to lapse in his favor until he shall return to the state,--not simply on a hasty visit of a day or two at long intervals, but for the purpose of residence. And if, after such return, he shall depart from the state for the purpose of residence out of it, or to sojourn out of it for a year or more, the time of his absence will not be allowed in his favor; it will be subtracted from the time that would have been so allowed if he had remained in this state. (2) When, after the cause of action accrued or the judgment was rendered or docketed, the debtor, resident or non-resident of this state, departed from and resided out of it, "the time of...

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7 cases
  • State Of North Carolina v. Dumas, COA0 9-85 9
    • United States
    • Court of Appeal of North Carolina (US)
    • 6 Julio 2010
    ...another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Joyner, 2 97 N.C. 34 9, 357, 255 S.E.2d 390, 395 (1979). At trial, the State introduced evidence that Defendants Parks and Dumas were walking alone together near t......
  • Voliva v. Richmond Cedar Works
    • United States
    • United States State Supreme Court of North Carolina
    • 27 Mayo 1910
    ...upon which service of process can be had within the state and against which a personal judgment may be rendered. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347; Williams v. B. & L. Association, 131 N.C. 267, S.E. 607. In this last case Mr. Justice Clark, speaking for the court, and quoting with ......
  • Hill v. Lindsay
    • United States
    • United States State Supreme Court of North Carolina
    • 25 Noviembre 1936
    ...... action.". . . .          This. statute has been construed by this court in Armfield v. Moore, 97 N.C. 34, 2 S.E. 347, and Lee v. McKoy, 118 N.C. 518, 24 S.E. 210, to mean that where the. debtor is a nonresident at the time the ......
  • Lee v. McKoy
    • United States
    • United States State Supreme Court of North Carolina
    • 24 Marzo 1896
    ...... running of the statute, nor would occasional visits to the. state put the statute in motion. Armfield v. Moore,. 97 N.C. 34, 2 S.E. 347. While he is a nonresident, and from. the time he becomes such, the statute is ipso facto. suspended. When a ......
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