United States Fidelity & Guaranty Co. v. Ransom

• Decision Date: 20 December 1941
• Docket Number: 34779.
• Citation: United States Fidelity & Guaranty Co. v. Ransom, 5 So.2d 238, 192 Miss. 286 (Miss. 1941)
• Court: Mississippi Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. RANSOM.

5 So.2d 238

192 Miss. 286

UNITED STATES FIDELITY & GUARANTY CO. v. RANSOM.

No. 34779.

Supreme Court of Mississippi

December 20, 1941

Cassidy & McLain, of McComb, and A. A. Cohn, of Brookhaven, for appellant.

Hutchison & Hutchison, of Summit, and Lotterhos & Travis, of Jackson, for appellee.

ROBERDS Justice.

Appellant obtained a judgment against appellee in the State of Alabama on July 7, 1930.This arose out of transactions occurring in the States of Alabama and North Carolina.Appellee at that time, and at all times prior to September 1937, was and had been a nonresident of the State of Mississippi.He became a resident of Mississippi in September, 1937.

On August 17, 1934, appellee was discharged in bankruptcy in the southern division of the northern district of Alabama, from all of his dischargeable debts.

On August 12, 1939, appellant filed the present action against appellee, the foundation of which is the Alabama judgment.

Appelleedefendant below, pleaded the seven-year statute of limitation, as provided in Section 2304, Mississippi Code of 1930, and also that this debt had been discharged in the bankruptcy proceeding.Appellant, plaintiff below, in replication to the plea of the defendant pleaded Section 2310,Code 1930, taking the position that the period between July 7, 1930, the date of the Alabama judgment, and September 1937, when the defendant became a resident of Mississippi should not be allowed defendant on the limitation, and that the debt upon which the judgment was founded was not a dischargeable debt in bankruptcy.

Appellee demurred to the replication, which demurrer was sustained and plaintiff declining to plead further, a final judgment was entered against appellant, from which action of the lower court this appeal is taken.

It will be seen that the questions presented upon this appeal are whether the seven-year statute of limitation has run in favor of the appellee, and whether the debt is dischargeable in bankruptcy.

We have reached the conclusion that the statute of limitation does apply, and therefore we do not in this opinion discuss the question whether the debt is dischargeable in bankruptcy.

Appellant's position is that the statute did not begin to run until appellee became a resident of Mississippi.Appellee's position is that it began to run from the date of the judgment, because this cause of action did not accrue in Mississippi and defendant could not have been sued here until he became a resident of this State.

Appellant's position is correct under the old statute, but is not correct under the present statute.The old statute was as follows:

"If, at the time when any cause of action mentioned in this chapter, shall accrue against any person, he shall be out of the state, the action may be commenced within the time herein limited therefor, after such person shall have come into the state; and if, after any cause of action shall have accrued, the person against whom it has accrued shall be absent from, and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action."Section 2157, Code of 1871.

The present statute reads: "If, after any cause of action have accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after his return."

This was Section 2678, Code of 1880.There is a vital difference in the old and the existing statute.

Under the old statute, the time was fixed "after any cause of action shall have accrued", regardless where it had accrued; under the present statute the time of the absence of the debtor from the State is to be deducted only "after any cause of action have accrued in this state."

For cases construing the old statute, seeClements v. Brown,31 Miss. 93;Maitland, Kennedy & Company v. Keith, 30 Miss. 499;Ingraham v. Bowie,33 Miss. 17;Kennard v. Alston,62 Miss. 763;Lindenmayer v. Gunst,70 Miss. 693, 13 So. 252, 35 Am.St.Rep. 685;Robinson v. Moore,76 Miss. 89, 23 So. 631.But the cases passing upon the present statute have held that the statute only applies after the cause of action has accrued in Mississippi.Wright v. Mordaunt,77 Miss. 537, 27 So. 640, 78 Am.St.Rep. 536;Scottish American Mortgage Company v. Butler,99 Miss. 56, 54 So. 666, Ann.Cas.1913C, 1236;Fisher v. Burk,123 Miss. 781, 86 So. 300.

The case of Wright v. Mordaunt, supra, is decisive of this question.This was a suit upon a promissory note executed in Illinois, and payable in that state.Both parties resided in that state at...