Charles H. Wetmore's Admr. v. Karrick

• Decision Date: 04 October 1921
• Citation: 115 A. 234,95 Vt. 318
• Parties: CHARLES H. WETMORE'S ADMR. v. JAMES L. KARRICK
• Court: Vermont Supreme Court

115 A. 234

95 Vt. 318

CHARLES H. WETMORE'S ADMR. v. JAMES L. KARRICK

Supreme Court of Vermont

October 4, 1921

May Term, 1921.

ACTION OF CONTRACT on a promissory note. Plea, the statute of limitations. Trial by jury at the September Term, 1920 Chittenden County, Butler, J., presiding. At the close of the plaintiff's evidence the Court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Edward H. Deavitt and John F. McKay for the plaintiff.

Max L. Powell for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The promissory note, on which this action is based, is dated at Boston, Massachusetts, February 11, 1892, and payable three months after date to Charles H. Wetmore, at the office of the maker, James L. Karrick (the defendant), in Boston. At the time the note was given, also at the time when the cause of action accrued, both parties resided in that state. While they so resided, and before the statute of limitations had run, suit was there brought on the note and judgment obtained therein against the defendant, but this judgment was finally held, by the Federal Supreme Court--reported in 205 U.S. 141, 51 L.Ed. 745, 27 S.Ct. 434--to be void for want of due process of law. The judgment in the latter court was rendered in 1907, at which time the defendant had ceased to be a resident of Massachusetts and, so far as appears, had no attachable property therein.

The present suit was brought in 1912, personal service of the writ being made upon the defendant in this State. Defendant pleaded the statute of limitations, and the plaintiff replied that neither by the statute of Massachusetts nor by the statute of Vermont was the action barred, and issue was joined thereon. But, unlike a statute extinguishing the liability, the statute of limitations affects the remedy only, and therefore whether the action is barred is to be determined by the law of the forum. Cartier v Page, 8 Vt. 146; Graves v. Weeks 19 Vt. 178; Sisson v. Niles, 64 Vt. 449, 24 A. 992.

It is urged that the suit can be maintained, the defendant not having resided in this State the limitation period, relying on the provision of law (G. L. 1862) that if, after the cause of action accrues and before the statute has run, the person against whom it accrues is absent from and resides out of the State, and has no known property within...