Bruner v. Martin

• Decision Date: 07 December 1907
• Docket Number: 15,251
• Parties: ESTHER BRUNER et al. v. JENNIE S. MARTIN
• Court: Kansas Supreme Court

93 P. 165

76 Kan. 862

ESTHER BRUNER et al. v. JENNIE S. MARTIN

No. 15,251

Supreme Court of Kansas

December 7, 1907

Decided July, 1907.

Error from Meade district court; EDWARD H. MADISON, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORDS AND PHRASES--Cause of Action--"Arisen" and "Accrued" are Synonymous. The words "where the cause of action has arisen in another state," as used in the statute of limitations (Code, § 22; Gen. Stat. 1901, § 4450), mean when the cause of action has accrued in a foreign state or, in other words, when the plaintiff has the right to sue the defendant in the courts of such foreign state; and they have no reference to the origin of the transaction out of which the cause of action arose.

2. LIMITATION OF ACTIONS--Conflict of Laws. An action on a promissory note cannot be maintained here under section 22 of the code of civil procedure where both the plaintiff and the defendant were non-residents of Kansas when the cause of action accrued and the defendant resided in a foreign state until the cause of action was barred by the laws of that state.

George A. Vandeveer, F. L. Martin, and E. L. Foulke, for plaintiffs in error.

Francis C. Price, for defendant in error.

OPINION

PORTER, J.:

This suit was brought by Jennie S. Martin against Esther Bruner and others to foreclose a mortgage on real estate. A judgment was rendered for the plaintiff, and the defendants bring these proceedings in error.

The sole question involves the construction of the statute of limitations. There was a stipulation as to the facts, from which it appears that the plaintiff resides in New Jersey and has never been a resident of Kansas. She acquired the note and mortgage by purchase from another non-resident. The note and mortgage were executed in Kansas, July 2, 1888, by Charles and Lucy B. Veatch, husband and wife, who were the owners of the real estate. The note was payable five years after date, at the city of New York, to the Kansas & New Jersey Loan Company, a Kansas corporation, and contained a clause providing that it should be construed in all respects according to the laws of Kansas. The mortgage was duly recorded in Meade county, Kansas, where the land is situated. It contained the usual conditions. In 1890, before the maturity of the note, Charles Veatch and wife, makers of the note and mortgage, conveyed the real estate to Francis M. Bruner and removed to the state of Missouri, where they have since resided, and they have never since returned to or been within this state.

The note and mortgage were before maturity indorsed and transferred to a non-resident of Kansas, and by subsequent indorsement and transfer became the property of the plaintiff. The limitation laws of Missouri bar an action upon a promissory note ten years after the cause of action thereon accrues. The principal defendants are the heirs of Francis M. Bruner, who purchased the land from Charles Veatch, subject to the mortgage. They are all residents of the state of Iowa and have resided there continuously. The defense relied upon is the statute of limitations. The answer alleged that the cause of action for the foreclosure of the mortgage arose at the time the note became due and was therefore barred by the five-year statute of limitation; that the cause of action upon the note arose in Missouri, where the makers resided at the time the note matured; and the provisions of the Missouri statute of limitations were set out. Section 22 of the civil code, in so far as it is directly involved, reads as follows:

"Where the cause of action has arisen in another state or country, between non-residents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action [can be] maintained thereon in this state." (Gen. Stat. 1901, § 4450.)

In its last analysis the case turns upon the meaning of the words "cause of action has arisen" and "cause of action arose," as used in the foregoing section. The trial court construed the word "arisen" to mean "originate," and upon this construction based its ruling; and it is the contention of the plaintiff that the cause of action in this case arose within the state of Kansas, where the contract was made, and that section 22 has no application, but that section 21 of the code applies. The latter section reads as follows:

"If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if after the cause of action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." (Gen. Stat. 1901, § 4449.)

There is a conflict of authority upon the precise question involved, and it has never, we believe, been decided in this state. Some courts in construing statutes containing the exact language of ours, and others in construing statutes of almost identical language, have held that a different meaning attaches to the words "cause of action has arisen" as used in section 22 and the words "cause of action accrues" as used in section 21. These courts have declared that a cause of action arises when and where the transaction occurs from which it originates; that is, where the contract is made. (See the following authorities: Chevrier v. Robert, 6 Mont. 319, 12 P. 702; John Shillito Co. v. Richardson, 102 Ky. 51, 42 S.W. 847; Powers Mercantile Co. v. Blethen, 91 Minn. 339, 97 N.W. 1056; Doughty, Receiver, v. Funk, 15 Okla. 643, 84 P. 484, 4 L.R.A. N.S. 1029.) The Oklahoma statute, construed in the last-named case, is copied literally from the Kansas statute, and the opinion which cites the cases upholding this view presents the reasons thereof as well as any to which our attention has been called.

The decisions referred to are against the better reasoning, in our opinion, and unquestionably opposed to the great weight of authority. The phrase "cause of action" has often been defined. It cannot exist without the concurrence of a right, a duty and a default, or, stated differently, an obligation must exist upon one party in favor of the other, the performance of which is refused. Bouvier defines it as a right to bring an action. To the same effect see Bucklin v. Ford, 5 Barb. 393; Meyer v. Van Collem, 28 Barb. 230; Lewis v. Hyams, 26 Nev. 68, 63 P. 126, 64 P. 817, 99 Am. St. Rep. 677. "Cause of action is the right to prosecute an action with effect." (Douglas v. Forrest, 4 Bing. 686, 704.) In Veeder v. Baker, 83 N.Y. 156, the phrase was defined as follows:

"It may be said to be composed of the right of the plaintiff and the obligation, duty or wrong of the defendant; and these combined, it is sufficiently accurate to say, constitute the cause of action." (Page 160.)

Pomeroy, in section 347 of the fourth edition of his Code Remedies, uses the following language:

"Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several states. They are the legal cause or foundation whence the right of action springs."

Many other definitions by courts and text-writers which are substantially the same may be found collated in the able dissenting opinion of Mr. Justice Young in Mortgage Co. v. Northwest Thresher Co., 14 N.D. 147, 164, 103 N.W. 915, 70 L. R. A. 814.

It would be difficult to find a better or more apt statement of where and when a cause of action arises than is found in the following extract from the opinion in Durham v. Spence, L. R. 6 Ex. (Eng.) * 46:

"Now, the cause of action must have reference to some time as well as to some place; does then the consideration of the time when the cause of action arises give us any assistance in determining the place where it arises? I think it does. The cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done. But the time when the cause of action arises determines also the place where it arises; for when that occurs which is the cause of action, the place where it occurs is the place where the cause of action arises." (Page 52.)

In Patterson v. Patterson, 59 N.Y. 574, 17 Am. Rep. 384, the court said:

"Nor is there room for difference as to what is meant by the phrases 'cause of action has accrued' or 'cause of action has arisen,' since the death of the testator. They do not mean the contracting of the indebtedness, for a cause of action does not accrue or arise from the making of the contract of indebtedness alone, but out of the non-performance of it as well." (Page 578.)

In Lewis v. Hyams, 26 Nev. 68, 63 P. 126, the same question was involved, and it was there held that the phrase "when the cause of action has arisen" means exactly the same as if the statute had said "when a cause of action has accrued." In a further opinion upon an application for a rehearing it was stated that after an...