Bliler v. Boswell

• Citation: 9 Wyo. 57,59 P. 798
• Parties: BLILER v. BOSWELL, ADMINISTRATOR
• Decision Date: 13 January 1900
• Court: United States State Supreme Court of Wyoming

59 P. 798

9 Wyo. 57

BLILER v. BOSWELL, ADMINISTRATOR

Supreme Court of Wyoming

January 13, 1900

Rehearing Denied July 16, 1900, Reported at: 9 Wyo. 57 at 80.

ERROR to the District Court, Albany County; HON. CHARLES W. BRAMEL Judge.

Suit was brought upon promissory notes by Nathaniel K. Boswell administrator of the estate of Bertha A. Hance, deceased against Warren Bliler. Judgment was given for the plaintiff, and defendant alleged error. The facts are fully stated in the opinion, so far as material.

Judgment affirmed.

C. E. Carpenter, for plaintiff in error.

Movables by fiction of law are deemed to be attached to the person of the owner, and to be present at his domicil, regardless of their actual situation. (Hawes v. Juris., 17 and 210; 1 Whart. Conflict of Laws, 393; Story Conflict Laws, 374.) Choses in action follow the person of the owner. A State has no jurisdiction over the person of a non-resident, nor over his choses in action, because they have no location or tangibility in the State. [Hawes Juris., 212.] In matters of probate and settlement of estates of decedents, the domicil is the place of primary and exclusive jurisdiction. (Leonard v. Putnam, 51 N H., 247; Est. of Harlan, 24 Cal. 182; 1 Woer. on Adm., 360.) Simple contract debts are not bona notabilia, and they must be administered upon at the place where the debtor resides. (1 Woer. Adm., 205; 2 id., 309.)

Grant of letters of administration upon the estate of one who did not reside within the jurisdiction of the court issuing the letters at the time of death is void. (Bank v. Wilcox, 15 R. I., 258; Mallory v. Burlington, 53 Kan. 557.)

The causes of action on the notes arose in Colorado, and being barred by the laws of that State, are barred by the laws of this State. (Anderson's L. Dict., 157; R. S. of 1887, Sec. 2379; Mill's Stat. Colo., Sec. 2900, 2914.) Statutes of limitation once put in operation, continue to run, notwithstanding subsequent disabilities. (Doyle v. Wade, 23 Fla. 90; Castro v. Gill, 110 Cal. 292; Kistler v. Hereth, 75 Ind. 177; Nicks v. Martindale, 18 Amer. Dec., 647; Moor v. Armstrong, 10 O., 11.) The marriage of a woman dees not interrupt the running of the statute. The equity side of the court was appealed to. The suit attempted to enforce a stale demand. Equity will give relief in such cases. (Nepach v. Jones, 20 Oreg., 421; Reynolds v. Summer, 126 Ill. 58; Hudson v. Layton, 5 Harr., 74; McCarter v. Traphagen, 43 N. J. Eq., 323; Nelson v. Kounsler, 79 Va. 468; Perkins v. Lane, 82 id., 59; Douglass v. Douglass, 72 Mich. 86; Montgomery v. Noyes, 73 Tex. 203; Snell's Prin. Eq., 43.) In this State there is but one form of action, and the defendant may set up an equitable defense, as was done in this case. We think that the court should have admitted the testimony of the defendant as to the place of execution of the notes. Such testimony seems to come within the spirit of the exceptions in the statute.

N. E. Corthell, for the defendant in error.

The fact that personal property of the deceased was found in the county was sufficient to invest the court with jurisdiction to administer the estate. (L. 1890-91, 245; 1 Woer. Adm., 204.)

The notes being Wyoming contracts, the causes of action thereon arose here, and the laws of Colorado have no application. The notes having matured in 1883 and 1884, respectively, they are governed by the law as existing then. (Comp. L. of 1876, Ch. 13, Tit. 2, p. 34.) Upon the general proposition that the laws of the other State do not apply, the following authorities are cited. (Hawse v. Burgmire, 4 Colo., 413; Thompson v. Ketchum, 8 Johns., 189; Collins v. Manville, 170 Ill. 614; Wood v. Bissell, 108 Ind. 229; Goodknow v. Stryker, 62 Ia. 221; J. Shillito Co. v. Richardson, 42 S. W., Ky., 847; Chevvier v. Robert, 6 Mont., 319; Patent T. Co. v. Stratton, 89 F. 174; Holley v. Coffey (Ala.), 26 So. 239; Phelps v. McGee, 18 Ill. 158; Aird v. Hayne, 36 id., 174; Weber v. Yancey, 7 Wash. 84.)

When one cause of action accrued, the payee was a married woman and continued so to be until her death. That fact, in Colorado, as well as in Wyoming, would have prevented the statute from running. The legislation giving additional rights to married women did not impliedly repeal the statutes of limitations as to her. The exceptions as to married women remain unless expressly repealed. (Rowland v. McGuire, 64 Ark. 412; North v. Jones, 61 Miss. 761; Lindell R. E. Co. v. Lindell, 142 Mo. 61; Lippard v. Troutman, 72 N. C., 551; Hurlbut v. Wade, 40 O. St., 603; Ashley v. Rockwell, 43 id., 386; Lattie v. Holliday, 27 Ore., 175; Fitsimmons v. Johnson, 90 Tenn. 416; Alsup v. Jordan, 69 Tex. 300; Stubblefield v. Menzies, 11 F. 268; Fink v. Campbell, 70 id., 664.) Staleness of a demand is a defense allowed in equity in a suit brought to enforce a mere equitable right; but it has no application to a proceeding to enforce a legal right. (Montgomery v. Noyes, 73 Tex. 203; Badger v. Badger, 2 Wall., 87; Brown v. Buena Vista, 95 U.S. 157; Lansdale v. Smith, 106 id., 391; Ball v. Ball (R. I.), 40 A. 234; Hamilton v. Dooley, 15 Utah 280.) It is always largely a question of fact for the trial court. (Meherin v. S. F. Prod. Co., 117 Cal. 215; Pike v. Martindale, 91 Mo. 285.) And as long as the statutes of limitations have not run, the right to bring suit is not barred by mere lapse of time. (Marshall v. DeCordova, 50 N.Y. 294.) The testimony of the defendant was not competent, as he is prohibited from testifying, the adverse party being an administrator. (R. S., 2588; 1 Greenl. Ev., 329.)

POTTER, CHIEF JUSTICE. CORN J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

Nathaniel K. Boswell, as the administrator of the estate of Bertha A. Hance, deceased, brought this action against Warren Bliler upon two promissory notes executed by the latter to Bertha A. Martin July 1, 1879, and Oct. 1, 1879, respectively. The said Bertha A. Martin subsequent to the execution of the notes was married to Anson I. Hance. She died intestate Nov. 8, 1897, and said Boswell was appointed administrator of her estate Jan. 4, 1898, by the district court for Albany County in this State.

Judgment was rendered in favor of the plaintiff in the action for the amount of the notes with interest, amounting to $ 2,803.12 and costs of suit. The amount due upon the first cause of action was found to be $ 1,384.02, and upon the second cause of action $ 1,419.10. The defendant brings the case here on error.

The note of July 1, 1879, which constitutes the subject of the first cause of action, was given for $ 425. It became due by its terms, five years after date, and bears interest at the rate of ten per cent per annum. Upon this note two payments had been made, as follows: $ 67.30 Feb. 1, 1881, and $ 30 April 1, 1881. The note of Oct. 1, 1879, which is made the basis of the second cause of action, was given for $ 400, matured four years after its date, and bears interest at the rate of eight per cent per annum.

The defendant below, plaintiff in error here, interposed as a defense the statute of limitations. This defense had been anticipated by the plaintiff who alleged in his petition that when the causes of action accrued, the defendant was out of, and had not since been in, Wyoming, except for temporary and occasional purposes, not exceeding in the aggregate the period of six months; and also that the payee was a married woman at the time the causes of action accrued, and continued to be a married woman until her death. The jurisdiction of the district court for Albany County to appoint an administrator was assailed by the answer, and it was also asserted, as a defense, that the demands were stale, and for that reason should not be enforced. A reply was filed which denied the material new matter set up in the answer.

Certain facts were agreed upon, at the trial, by written stipulations of the parties. The defendant below offered to prove, by his own testimony, certain other facts, which offer was rejected. The rejection of that evidence, so offered, is assigned as error; and the facts thus attempted to be shown will be stated in considering said assignment of error.

Stated as briefly as is consistent with a proper presentation of the case, the agreed facts, in addition to what has been already mentioned, are as follows: The maker and payee of the notes were brother and sister, and resided at the ranch of the maker (Bliler) in Larimer County, in the State of Colorado, at the time the notes were given, and when they respectively became due, and so resided continuously from the year 1878--the payee until her death, in November, 1897, and the maker until the trial of this action--and neither of said parties ever resided in Wyoming. The defendant, plaintiff in error here, had not been in Wyoming since the causes of action accrued except at occasional intervals, and not exceeding six months in the aggregate.

When the notes were executed, the payee, Bertha A. Martin, was a single woman, and she was married to Anson I. Hance, Jan. 20, 1884, and continued in that relation until her death.

The notes upon their face purport that the place of their execution was Corlett, in Albany County, Wyoming, which was the post-office address of both of the parties to the notes.

Said notes were kept in the State of Colorado from the date of their execution until they became due and payable, and the cause of action accrued thereon respectively; and they remained in said State thereafter for more than nine years.

At the time of the death of the payee, Bertha A. Hance, she was a resident of Colorado, but she died in the county of Albany in the State of Wyoming, while on her way through the said county to her place of residence in Colorado. At the time of her...