Bemis v. Ward

• Decision Date: 17 December 1904
• Parties: BEMIS v. WARD.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 291

BEMIS v. WARD.^*

Court of Civil Appeals of Texas.

December 17, 1904.

Appeal from District Court, Marion County; R. A. Turner, Judge.

Action by W. B. Ward against J. H. Bemis and others. From a judgment for plaintiff, defendant J. H. Bemis appeals. Affirmed.

Glass, Estes & King, for appellant. W. T. Armistead and F. N. Prendergast, for appellee.

RAINEY, C. J.

This suit was brought by appellee on a promissory note against J. H. Bemis, appellant, and H. D. K. Bemis, W. N. Bemis, C. H. Bemis, and H. E. Bemis. The defendant H. D. K. Bemis pleaded coverture, and all the defendants pleaded the statute of limitation of four years. They alleged that they resided in Texas for more than four years after the note became due; that they left Texas about the 1st day of October, 1897, more than four years after the note fell due, and have permanently resided beyond the limits of said state since that time, and have never returned to the state; and that more than four years elapsed between the time they permanently left the state and the filing of appellee's original petition on May 18, 1903. Appellee dismissed his suit as to W. N. Bemis, C. H. Bemis, and H. E. Bemis, and judgment was rendered in favor of appellee against appellant, J. H. Bemis, for the amount of the note and interest thereon from July 12, 1892, at the rate of 8 per cent., and that he take nothing of H. D. K. Bemis. This appeal is prosecuted by J. H. Bemis only.

We adopt the trial court's conclusions of fact, which are not controverted, as follows: "First. That J. H. Bemis lived and resided, before the time said note matured, in Texas, from July 12, 1892, until November, 1897; that in November, 1897, he moved from Texas with his family, permanently, to Prescott, Arkansas; that he resided in Prescott, Arkansas, until 1901, and then removed to St. Louis, Missouri, where he has since resided; and that he has never returned to Texas since leaving in 1897. He lived and resided in Texas when said note was executed. Second. I find that from July 12, 1893, the time said note matured, to November, 1897, the defendant J. H. Bemis was absent from the state of Texas, once on a trip to New York, in 1894, for the period of one month, and once, in 1895, he was absent from Texas on business or pleasure for a period of twelve weeks; that in 1895 and 1896, on other occasions, he was absent from the state as much as two months; and that all together, from the time the note sued on matured until this suit was filed, J. H. Bemis was not actually in Texas as much as four years. This suit was filed May 18, 1903. Third. I find the note sued on has not been paid, and that J. H. Bemis is liable thereon, and the attachment described in the judgment herein is a lien on the land therein described."

The contention of appellant is that: "Where the maker of a note resides in Texas for more than four years from the time the note becomes due, action on said note is barred by the statute of limitation of four years, and the running of the statute is not interrupted by such person going beyond the limits of the state on business or pleasure, where he does not change his residence from the state, but...