Burrows v. French

• Decision Date: 17 June 1891
• Court: South Carolina Supreme Court
• Parties: Burrows v. French.

13 S.E. 355

34 S.C. 166

Burrows

v.French.

Supreme Court of South Carolina.

June 17, 1891.

Statute of Limitations—Disabilities—Absence from State—Non-Resident—"Return. "

Code Proc. S. C. § 121, providing that, if any person be out of the state when a cause of action accrues against him, such action may be commenced within a specified time after his "return. " applies not only to a resident of the state who has gone abroad temporarily, and then returns, but also to one who has never been a resident, and who comes for the first time within its limits.

Appeal from common pleas circuit court of Greenville county; James F. Izlar, Judge.

Action by Lewis P. Burrows against A. H. French on a promissory note. Judgment for defendant. Plaintiff appeals.

Perry & Hey ward, for appellant.

Westmoreland & Haynsworth, for respondent.

McIver, J. In this case there is no controversy as to the facts, and the single question presented is whether the plaintiff's action, under the conceded facts, was barred by the statute of limitations. The action was on a note dated 20th of March, 1874, payable on demand, with interest annually, with a payment indorsed thereon, dated 14th of December, 1879. At the time of the making of this note, both payee and maker were citizens of the state of New Hampshire, and the payee still resides there. The maker, however, some time after the execution of the note, (but when, precisely, is not stated,) left that state, and eventually settled in this state, where he has been residing for a period of less than six years before the commencement of this action. This action was commenced on the 10th of June, 1890, and, the plea of the statute having been interposed and sustained by the circuit judge, judgment was rendered in favor of defendant, and plaintiff appeals, alleging error in holding that the action was barred by the statute of limitation. Inasmuch as it is apparent from this statement that, upon the face of the papers, the action would be barred by the statute of limitations, unless it falls within some one of the exceptions provided for in the statute, the only question is whether it does come within any one of those exceptions. The only one which, it is suggested, covers this case is that found in section 121 of the Code of Procedure, which reads as follows: "If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." Inasmuch as it is not pretended that the defendant, alter the accrual of plaintiff's cause of action, departed from this state, it is very clear that the second clause of the section just quoted has no application, and it only remains to consider whether the first clause applies, and what is its effect. It being conceded that the defendant was out of the state when the cause of action accrued, the inquiry is narrowed down to the question whether the plaintiff can avail himself of the privilege conferred by the lattet part of the first clause, allowing the action to be brought within six years (that being the period limited by the Code with-in which an action like this may be brought) "after the return of such person into this state;" and that turns upon the construction proper to be given to the word "return, " as used in the section.

On the one hand, the appellant contends that this word, as there used, should be so construed as to embrace a person who never was a resident of this state before, but for the first time comes within its limits, and takes up his residence here; while the respondent contends that it must be confined to persons who, having once resided here, have gone abroad for a time, and have come back to the state. It is very obvious that, if the construction contended for by appellant can be...