Anthes v. Anthes

• Citation: 21 Idaho 305,121 P. 553
• Parties: HENRY W. ANTHES, Executor, Respondent, v. WILLIAM A. ANTHES, Administrator, Appellant
• Decision Date: 03 February 1912
• Court: United States State Supreme Court of Idaho

121 P. 553

21 Idaho 305

HENRY W. ANTHES, Executor, Respondent, v. WILLIAM A. ANTHES, Administrator, Appellant

Supreme Court of Idaho

February 3, 1912

STATUTE OF LIMITATIONS-TOLLING THE STATUTE OF LIMITATIONS-TEMPORARY ABSENCE FROM THE STATE-SUBSTITUTED SERVICE-SUIT BY FOREIGN EXECUTOR-CAPACITY TO SUE-WAIVER.

(Syllabus by the court.)

1. Under the provisions of sec. 4069, Rev. Codes, if a person be absent from the state when a cause of action accrues against him, the action may be commenced within the time limited by the statute of limitations after his return to the state; and if after the cause of action accrues and the statute begins to run he departs from the state, the time of his absence is not a part of the time limited for the commencement of the action, and this will be true whatever the cause of his absence may have been and whether it be of a mere temporary nature or a change of residence and domicile.

2. The act of March 13, 1907 (1907 Sess. Laws, p. 321), amending section 4144 of the Rev. Codes and providing a method of substituted service of process upon a resident of this state temporarily absent from his residence or from the state, did not amend sec. 4069, with reference to the running of the statute of limitations in case of the party to be served departing or being absent from the state.

3. The departure and absence from the state contemplated by sec 4069 of the Rev. Codes includes any absence, whether temporary or permanent, and any departure from the state from whatever cause, and therefore the nature of the absence or the cause of the departure is wholly immaterial.

4. As to whether a person appointed under the laws of a foreign state as an executor or administrator of the estate of a deceased person can maintain an action in this state for the collection of a debt due to the estate represented by him without first being appointed as administrator or executor of such estate by a court of this state, discussed but not passed upon, for the reason that it is not considered essential to the determination of the case.

5. The objection that a person, who has been appointed executor of the estate of a deceased person by a court of a foreign state and who commences an action in this state to collect a debt due to the estate represented by him, cannot maintain his action in this state without being first appointed by the court of this state as the representative of such estate, goes to the capacity of the plaintiff to sue or maintain his action, and is a ground of demurrer under sec 4174, Rev. Codes, and if not raised by demurrer or answer, is thereby waived under the provisions of sec. 4178, Rev. Codes.

6. The representative capacity of an executor or administrator and his legal authority to represent the estate for which he is suing goes to the capacity of the plaintiff to maintain the action rather than the sufficiency of the facts to constitute a cause of action.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. John F. MacLane, Presiding Judge.

Action upon a promissory note. Judgment for plaintiff; defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Geo. E Gray, for Appellant.

The mere temporary absence of a debtor from the state, when such debtor has a usual place of residence therein where service of summons can be had upon him, does not suspend the statute of limitations. (Blodgett v. Utley, 4 Neb. 25.)

The courts have held that if personal service of summons could be had on the debtor during his absence, it was the legislative intent that the statute would run during such an absence; and the legislative intent will prevail over a literal construction of the statute. (Penley v. Waterhouse, 1 Iowa 498; Sage v. Hawley, 16 Conn. 106, 41 Am. Dec. 128; Campbell v. White, 22 Mich. 178; Ford v. Babcock, 2 Sand. (N. Y.) 527; Gilman v. Cutts, 23 N.H. 376; Cruikshanks v. Frean, 3 McCord (S. C.), 84.)

Mere temporary absence of a resident debtor from the state is not such an obstruction as will suspend the statute of limitations. (Buckley v. Jenkins, 10 Bush (Ky.), 21; McDowell v. Underhill, 10 Bush (Ky.), 584.)

The executor or administrator cannot, as such, maintain a suit in one state by virtue of letters granted in another. (22 Cent. Dig. 2330, and cases cited; Noonan v. Bradley, 76 U.S. 394, 19 L.Ed. 757; Johnson v. Powers, 139 U.S. 156, 11 S.Ct. 525, 35 L.Ed. 112; Fugate v. Moore, 86 Va. 1045, 19 Am. St. 926, 11 S.E. 1063; Louisville etc. R. Co. v. Brantley, 96 Ky. 297, 49 Am. St. 291, and note, 28 S.W. 477. See extended note to Shinn's Estate, 45 Am. St. 664.)

A. M. Bowen, for Respondent.

The decided weight of authority in states having statutes similar to ours is to support the view that the question of residence, abode, or having attachable property does not avoid the tolling of the statute, even where constructive service or substituted service may be had. (Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466, 37 L.Ed. 316; Chicago Ry. Co. v. Cook, 43 Kan. 83, 22 P. 988; Lane v. Bank, 6 Kan. 74.)

In Texas, it is held that the Texas statute applies to temporary absence, even for a day. (Fisher v. Phelps, 21 Tex. 551; Phillips v. Holman, 26 Tex. 276; Bemis v. Ward, 37 Tex. Civ. App. 481, 84 S.W. 291. See, also, Rogers v. Hatch, 44 Cal. 280; Parker v. Kelly, 61 Wis. 552, 21 N.W. 539.)

The objection that a foreign representative cannot sue is waived by the failure to take it at the proper time and in the proper manner. (18 Cyc. 1243.)

If no objection be taken to the legal capacity of a plaintiff to sue either by demurrer or answer, under our code, a defendant waives the same. (Rev. Codes, sec. 4178; Palen v. Bushnell, 51 Hun, 423, 4 N.Y.S. 63; 34 Cyc. 439; Valley Lumber Co. v. Dreissel, 13 Idaho 662, 13 Ann. Cas. 63, 93 P. 765, 15 L. R. A., N. S., 299; Town of Susanville v. Long, 144 Cal. 362, 77 P. 987; Burton v. Cochran, 5 Kan. App. 508, 47 P. 569; Meyer v. Barth, 97 Wis. 352, 65 Am. St. 124, 72 N.W. 748; Wedel v. Herman, 59 Cal. 507; Owings v. Turner, 48 Ore. 462, 87 P. 160.)

The exact point involved here was considered in Wilson v. Wilson, 26 Ore. 251, 38 P. 185.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

The first contention made by appellant in this case is that the court erred in finding and holding that the action was not barred by the statute of limitations (secs. 4030 and 4052, Rev. Codes). The action was prosecuted by the executor of the payee to recover on a promissory note. At the time the action was instituted (March 5, 1909), the note as it appeared upon its face had been barred by the statute of limitations for a period of thirty-five days. In other words, the statutory period of five years had elapsed thirty-five days prior to the commencement of the action. In order to avoid the operation of the statute, the plaintiff alleged that the defendant departed from this state on about the first day of May, 1908, and remained absent therefrom for a period of sixty days. The defendant denied this allegation but admitted that he had been out of the state for a brief period of time, but claimed that his absence was only temporary and that he had all the time maintained a home and a residence within the state and that his wife had continuously resided at his home in this state. The court found that the defendant departed from the state on the first day of May, 1908, and remained continuously absent therefrom for a period of at least forty days, and the court concluded therefrom that the cause of action was not barred by the statute of limitations at the time of the commencement of the action.

Sec. 4069 of the Rev. Codes provides as follows:

"If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action."

It is under the provisions of the foregoing statute that the trial court held that this action was not barred by the statute of limitations. Appellant contends, however, that under the provisions of an act of the legislature, approved March 13, 1907 (1907 Sess. Laws, p. 321), amending sec. 4144 of the Rev. Codes, providing the manner of serving process, a temporary absence, where the party still maintains his residence in the state, does not come within the purview of sec. 4069, supra. The last subdivision of that amendment is as follows: "In all other cases to the defendant personally or by leaving a copy thereof and a copy of the complaint in the cause at the usual place of abode of the defendant with a member of the family over the age of twenty-one years."

Appellant cites the following cases which at least tend to support his contention: Blodgett v. Utley, 4 Neb. 25; Garth v. Robards, 20 Mo. 523, 64 Am. Dec. 203; Quarles v Bickford, 64 N.H. 425, 13 A. 642; Nunez v. Taylor, 91 Ky. 461, 16 S.W. 128; Buckley v. Jenkins, 73 Ky. 21, 10 Bush 21. The Nebraska case seems to be in point, but in Missouri the statute differed somewhat from ours, in that it provided that "if such person departs from and resides out of the state, the time of his absence shall not be deemed or taken as part of the time limited for the commencement of such action." There it was held that the statute did not mean a temporary absence but a change of residence. The same provision seems to have been contained in the New Hampshire statute, while the Kentucky statute contemplates such an absence as amounts to "obstructing the prosecution of the action," and the court accordingly held that such absence must be a change of...