Bauserman v. Charlott

• Decision Date: 06 June 1891
• Parties: BAUSERMAN v. CHARLOTT.
• Court: Kansas Supreme Court

26 P. 1051

46 Kan. 480

BAUSERMAN v. CHARLOTT.

Supreme Court of Kansas

June 6, 1891

Syllabus

1. Where an action is brought in this state upon a judgment of a court of record of a sister state, which is in full force in that state, the statute of limitations of this state, and not that of the sister state, will control.

2. The statute of limitations of this state is a statute of repose and must be favorably considered. Taylor v. Miles, 5 Kan 498; Sibert v. Wilder, 16 Kan. 176; Freeman v. Hill, (Kan.) 25 P. 870.

3. The cases of Railroad Co. v. Burlingame Tp., 36 Kan. 628, 14 P. 271, and Rork v. Commissioners, 45 Kan. -, 26 P. 391, followed.

4. Under the provisions of the statutes of this state, a creditor of a decedent, having a claim which he wishes to establish against the estate, may, if the widow or next of kin refuse to take out letters of administration, obtain letters for himself or some other person, after 50 days from the death of decedent; and he cannot, without any good cause or reason therefor, defer making such application until the statute of limitations has run, and then claim that all of the time from the death of the debtor to the appointment of the administrator the statute of limitations is suspended on account of the non-appointment of such administrator. If a creditor would save his claim against the estate of a decedent from the bar of the statute, he must exercise reasonable diligence, if the widow or next of kin refuse to take out letters of administration, to obtain administration for himself or some other person.

Error from district court, Leaven worth county; ROBERT CROZIER, Judge.

J. H. Gillpatrick and William Green, for plaintiff in error.

William A. Porter, for defendant in error.

OPINION

HORTON, C. J.

On the 15th day of December, 1874, C. S. Charlott recovered a judgment against Joseph Pulitzer and Gen. James G. Blunt in the circuit court of the city of St. Louis, in the state of Missouri, for $1,023.72. Gen. Blunt died on the 25th of July, 1881. On the 14th day of December, 1885, J. P. Bauserman was appointed administrator of his estate by the probate court of Leavenworth county. On the 14th day of December, 1888, C. S. Charlott brought his action in the district court of Leavenworth county against J. P. Bauserman, as administrator of the estate of Gen. Blunt, deceased, to recover a balance of $535 upon the Missouri judgment. The defendant pleaded the statute of limitations. Judgment was rendered in favor of Charlott for $535 and costs. The defendant below excepted, and brings the case here. It was admitted upon the trial that during all the time from December 15, 1874, and prior thereto, until the death of Gen. Blunt, on July 25, 1881, he had kept and maintained his home and usual place of residence in Leavenworth city, in this state; that during all said time this was continuously open and occupied by his family, consisting of his wife and children, where service of a summons could have been made upon him by leaving at his usual place of residence a copy thereof. It was also admitted upon the trial that Gen. Blunt was personally absent, or "out of the state," so much of the time from the 15th day of December, 1874, to the date of his death, on the 25th of July, 1881, that, if such personal absence from the state prevented the running of the statute of limitations, the judgment was not barred at his death. But it is further admitted that if the periods of time during which Gen. Blunt was personally present in Kansas from the 15th of December, 1874, to his death, on the 25th of July, 1881, were taken with and added to the time from July 25, 1881, to the appointment of Bauserman as the administrator of his estate, on the 14th of December, 1885, less the time allowed by the statute for the widow or next of kin to be granted administration, they aggregated more than five years. It is also admitted that, if the periods of time which Gen. Blunt was present in Kansas after the 15th day of December, 1874, to the 25th of July, 1881, (the date of his death,) were added to the time from his death to the commencement of this action, (the 14th day of December, 1888,) more than six years had elapsed. The administrator was appointed more than eleven years after the rendition of the Missouri judgment; more than four years after the death of Gen. Blunt; and this action in this state to recover upon that judgment was not commenced until three years after the appointment of the administrator. This action was therefore commenced fourteen years after the rendition of the judgment in Missouri, and more than seven years after the death of Gen. Blunt. We are asked, in a very able argument presented by the counsel representing the estate of Gen. Blunt, to re-examine and reconsider the prior decisions of this court, ruling that, if the debtor is out of the state for a temporary purpose, such temporary absence cannot be computed as any part of the period within which the action must be brought. Section 21, Civil Code. And we are further asked to re-examine and reconsider the prior decisions of this court, holding that the death of the debtor suspends the running of the statute, where the statute has commenced to run in the life-time of the debtor. For the purposes of this case, and the full protection of estates of decedents from all liability for stale or dishonest claims, which in the nature of things the heirs of a decedent could not as successfully defend against as if the intestates were living, it is not necessary at this time to reconsider any of the former decisions of this court, and therefore it is not necessary now for us to comment upon the prior decisions referred to. It is true that this court has said that the question of personal absence of the debtor from the state, and not the question of residence or non-residence, affects the running of the statute, under the provisions of section 21 of the Civil Code. Bonifant v. Doniphan, 3 Kan. 26; Lane v. Bank, 6 Kan. 74; Hoggett v. Emerson, 8 Kan. 262; Morrell v. Ingle, 23 Kan. 32; Conlon v. Lanphear, 37 Kan. 431, 15 P. 600; Railway Co. v. Cook, 43 Kan. 83, 22 P. 988. It is also true that this court has said that the death of the debtor operates to suspend the statute. Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 Kan. 273; Nelson v. Herkel, 30 Kan. 456, 2 P. 110; Mills v. Mills, 39 Kan. 455, 18 P. 521. But this court has never said, when the question was properly presented, that the creditor can indefinitely prolong the time of limitation by his own omission or refusal to act, or that the death of the debtor operates to suspend the statute of limitations indefinitely. Within the provisions of our Civil Code concerning limitations, an action can only be brought within this state upon a Missouri judgment within five years after its rendition, if during all that time the judgment debtor is personally present within the state. Civil Code, § 18, subds. 1, 6; Mawhinney v Doane, 40 Kan. 676, 17 P. 44.

The precise question is, if, under the prior decisions of this court, the death of the debtor operates to suspend the statute of limitations, is the statute indefinitely suspended? Clearly, a creditor ought not...