Bates v. Cullum

• Decision Date: 05 October 1896
• Docket Number: 347
• Citation: 177 Pa. 633,35 A. 861
• Parties: F. Bates, Cashier in trust for the Exchange Bank of Titusville, Pa., Appellant. v. H. B. Cullum
• Court: Pennsylvania Supreme Court

35 A. 861

177 Pa. 633

F. Bates, Cashier in trust for the Exchange Bank of Titusville, Pa., Appellant. v. H. B. Cullum

No. 347

Supreme Court of Pennsylvania

October 5, 1896

Argued May 5, 1896

Appeal, No. 347, Jan. T., 1896, by plaintiff, from judgment of C.P. Warren Co., March T., 1881, No. 258, for defendant on trial by court without a jury. Reversed.

Issue to determine the validity of a judgment, before the court without a jury.

The facts appear by the opinion of the Supreme Court.

On the trial the court, NOYES, P.J., held that the language of the act of May 22, 1895, P.L. 112, does not require a retrospective construction, but imports something to be completed in the future, and directed judgment to be entered for the defendant.

Errors assigned among others were, (2) in excluding the evidence on behalf of the plaintiff; (4) in entering judgment for defendant.

Judgment reversed and record remitted for further proceedings in accordance with this opinion.

Samuel T. Neill, for appellant. -- The defendant is not entitled to the benefit of the statute of limitations by reason of his absence from the state: Act of July 30, 1842, P.L. 449, 1 P. and L. Dig. 2671, pl. 6; Murray v. Baker, 3 Wheat. 545; Alexandria Bank v. Dyer, 14 Pet. 141; Gonder v. Estabrook, 33 Pa. 374.

The provisions of the act of May 22, 1895, deprive the defendant of the statute of limitations: Kille v. Iron Works, 134 Pa. 225; Lane v. White, 140 Pa. 99; Kelber v. Plow Co., 146 Pa. 485. It does not produce unconstitutional discrimination: Chemung Bank v. Lowery, 93 U.S. 72.

W. M. Lindsey, with him Jas. O. Parmlee and Edward Lindsey, for appellee. -- The tendency of the courts of this state, is not to hold laws changing the method of procedure and relating solely to the remedy retroactive unless the legislative intention that they shall be so appears unmistakably clear: Bedford v. Shilling, 4 S. & R. 401; Ogle v. Turnpike Co., 13 S. & R. 256; Allen v. Union Bank, 5 Wharton, 420; Bechtol v. Cobaugh, 10 S. & R. 121; Lefever v. Witmer, 10 Pa. 505; Uwchlan Tp. Road, 30 Pa. 156; Taylor v. Mitchell, 57 Pa. 209; Kille v. Iron Works, 134 Pa. 227; Lane v. White, 140 Pa. 99; Palairet's App., 67 Pa. 494; Dash v. VanKleeck, 7 Johns. 477; DeChastellux v. Fairchild, 15 Pa. 18; Bagg's App., 43 Pa. 512.

If the act shortened or lengthened the time of limitation as to nonresidents the title would, perhaps, be less objectionable, but to entirely deprive a class of people of rights they have heretofore enjoyed under what is at best no more than a notice that hereafter their use of such rights will be regulated, seems to us a violation of constitutional requirements: Road in Phoenixville, 109 Pa. 44; Sewickley v. Sholes, 118 Pa. 165; Phila. v. Ridge Ave. Ry., 142 Pa. 484; Com. v. Samuels, 163 Pa. 283; Payne v. School Dist., 168 Pa. 386.

Before STERRETT, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

In June, 1881, judgment was entered against defendant by virtue of a warrant of attorney contained in an unsealed note for $4,000 payable one day after the date thereof, November 10, 1873.

On defendant's application, the court in January, 1893, made a decree opening the judgment, for the purpose of enabling him to interpose the statute of limitations, and awarded an issue in which it is provided that "the judgment note shall stand for a declaration and defendant shall plead the statute of limitations, and no other plea, within ten days; the plaintiff on the trial to be at liberty to show any matter in bar of the running of the statute, subject to the usual rules as to notice of special matter." On appeal to this court, the action of the court below, in thus opening the judgment and awarding the issue, was affirmed: Bates v. Cullum, 163 Pa. 234.

By agreement of the parties the cause was tried January 27, 1896, by the court without a jury. On the trial, evidence relating to the merits of the claim and also tending to prove that within a few weeks after the note in question was given defendant left the state of Pennsylvania and ceased to be a resident thereof, and thenceforth continued to reside without the state, etc., was offered by the plaintiff and received under objection. In connection with the evidence of defendant's nonresidence, etc., he also cited and relied on the act of May 22, 1895, P.L. 112, which declares: "That in all civil suits and actions in which the cause of action shall have arisen within this state the defendant or defendants in such suit or action, who shall have become non-resident of the state after such cause of action shall have arisen, shall not have the benefit of any statute of this state for the limitation of actions during the period of such residence without the state."

Referring to the evidence that was received under objection, the learned trial judge, in his opinion, says: "All this evidence should have been excluded and we accordingly now sustain the objection, exclude the evidence from consideration and seal bill of exceptions for plaintiff. The plaintiff's evidence having been excluded, that offered by the defendant may be treated as withdrawn." As to the act above quoted, he says: "The language of the act before us does not seem to require a retrospective construction -- at least not such as to compel us, on ascertaining a fact by the trial of an issue, to enter a different judgment from that which we should have entered had the fact been judicially ascertained at the time of the order awarding the issue." He accordingly held that "No fact appears by which the running of the statute of limitations was prevented;" and, having found that the note in suit "was due more than six years before the judgment was...