Clegg v. Bishop

• Decision Date: 28 January 1927
• Court: Connecticut Supreme Court
• Parties: CLEGG ET AL. v. BISHOP.

136 A. 102

105 Conn. 564

CLEGG ET AL. v. BISHOP.

Supreme Court of Errors of Connecticut.

January 28, 1927

Appeal from Superior Court, Fairfield County; Isaac Wolfe, Judge.

The trial court court found these facts: Anthony M. Clegg died intestate on March 29, 1923, having had his domicile and usual place of abode in Stratford since October, 1921. His estate is in process of settlement as an insolvent estate, and commissioners were appointed to allow or disallow the claims of creditors. Noble P. Bishop appellee, presented a claim which was allowed by the commissioners in the amount of $4,043.92. The claim was for the principal amount of $2,500, and interest, being the balance due on six negotiable promissory notes bearing date between February 9, 1914, and June 8, 1914; the last one maturing September 25, 1914. Mr. Clegg was married three times. He resided and was domiciled in Brooklyn, N. Y during his marriage to his first wife. He owned and occupied a house in Brooklyn from his second marriage on August 1 1910, until her death on October 11, 1921, when he sold this house and move to Stratford, where he thereafter lived and had his domicile until his death. On June 4, 1910, he purchased a farm in Stratford of about 20 acres, giving it to Helen Moen, whom he subsequently married, as a wedding present. There were two dwellings on the farm, the larger known as the " Farm House," and the smaller as the " Cottage." On the farm were horses, cows, pigs chickens, etc., and it was cultivated and operated throughout the year by a manager who with the help occupied the larger house. Clegg and his second wife, from its purchase in 1910, until her death, resided in Stratford from about April 1st of each year, or as soon as the weather settled, and lived in the smaller house until the fall of each of these years. During this period, and until about August 1st in each year, Clegg would usually be present at the farm week-ends only, arriving on Saturday afternoon and returning on Monday morning to New York to attend to his business located there. Usually during August in each year he would spend practically all of his time at the farm. Clegg and his wife would also sometimes spend Thanksgiving Day at the farm, and on a few occasions Christmas, and at such times occupied the cottage, using stoves and small heaters, as it was not equipped or furnished for winter use until about 1920. Clegg sold some of the produce of the farm, and in the winter months the farm manager frequently shipped such produce to him at his residence in Brooklyn. Over this entire period some mail came to and from Clegg and others at the farm through the post office at Oronoque in Stratford.

The trial court reached these conclusions: (1) That said Clegg up to his removal to Stratford, in this state, about October, 1921, had his domicile and actual residence in the state of New York.

(2) That during the period from the making of said promissory notes to his removal to Connecticut in October, 1921, said Clegg was " without the state" within the meaning of section 6169 of the General Statutes.

(3) That the " usual place of abode" of said Clegg up to his removel to this state, in October, 1921, was in the state of New York.

(4) That the fact that Clegg spent a portion of his time at the farm in Stratford, as set forth in the finding, did not make such place his " usual place of abode" for the service of process.

(5) That the time appellee's claim was presented to the administratrices of the estate of Clegg, the statute of limitations had not run against such claim.

(6) That the action of the commissioners on said estate in allowing such claim should be ratified and affirmed.

Arthur M. Marsh, of Bridgeport, and John T. Curtis, of Stratford, for appellants.

Walter P. Judson, of New Haven, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J. (after stating the facts as above).

As early as 1910, and until Clegg moved to Stratford in 1921, he had his domicile and actual residence in Brooklyn, N.Y. The trial court held that from the making of the notes in 1914, to his removal into this state in October, 1921, his usual place of abode was in the state of New York, and that the portion of this period of time which Clegg passed at the farm in Stratford did not make it his " usual place of abode," and that he was during this period " " without the state" within the meaning of section 6169 of the General Statutes, and therefore the statute of limitations had not run against the claimant's claim in this state. Section 6169 provides:

" In computing the time limited in the several cases aforesaid the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation."

The appellants appeal upon the ground that Clegg had a usual place of abode for the purpose of serving process in Stratford during the period between 1914 and until his decease in 1923, and cannot for that reason be held to have been " " without the state" within the meaning of section 6169 of the General Statutes. The appellants maintain their appeal upon the additional ground that if it be held that Clegg did not have a usual place of abode during this entire period, he at least had such an abode for the purpose of service of process for at least eight months of every year from September, 1914, to November 30, 1921; that during such periods he was not " without the state" within the meaning of section 6169 of the General Statutes; and that the aggregate of these periods would more than equal the full statutory period barring the right of action upon the claim.

Two of the points urged by the appellants cannot be controverted:

(1) The statute of limitations begins to run in this state whenever the cause of action arises against a nonresident, as soon as he acquires a usual place of abode in this State, and against a former resident immediately upon his return to the state. Waterman v. Sprague Mfg. Co., 55 Conn. 554, 576, 12 A. 240; Hatch v. Spofford, 24 Conn. 432, 442.

(2) The periods of time during which this statute has run may be added together, and when their aggregate is the full statutory period, the statute may be said to have run and the claim barred, if the statute be pleaded in bar. Gibson v. Simmons, 77 Kan. 461, 94 P. 1013.

The controlling question in each of the positions of the appellants is whether Clegg was " without the state" within the meaning of section...