Cook's Ex'r v. Holmes

• Decision Date: 31 October 1859
• Citation: 29 Mo. 61
• Parties: COOK'S EXECUTOR, Respondent, v. HOLMES et al., Appellants.
• Court: Missouri Supreme Court

29 Mo. 61

COOK'S EXECUTOR, Respondent,

v.HOLMES et al., Appellants.

Supreme Court of Missouri.

October Term, 1859.

1. The running of the limitation act of March 6, 1835, was suspended by the departure of the debtor from his residence out of the state.

2. Where a promissory note is made to an administrator in his representative character, and such administrator dies, a suit thereon may be properly brought in the name of the executor of such administrator.

Appeal from Ste. Genevieve Circuit Court.

This was a suit commenced by attachment by Mason Frissell as executor of Nathaniel Cook, who was the surviving administrator of the estate of Thomas Maddin, deceased. The suit was on a promissory note for eight hundred and ten dollars, executed by defendants in favor of Nathaniel Cook and Richard Maddin, administrators of Thomas Maddin. The note was dated July 10, 1839, and was payable twelve months after date. It appeared in evidence that the defendants left the state of Missouri publicly with their families in the year 1845 and have since resided in the state of Arkansas. It appeared that one of the defendants had visited his former place of residence two or three times, and the other once or twice, and that Cook, plaintiff's testator, had knowledge of their departure and residence abroad. The cause was tried by the court sitting as a jury. The defendants asked the court to instruct the jury as follows: “1. The note read in evidence having been due more than ten years before the commencement of the action, and the defendants then being residents of this state and having after that time remained in this state for several years, the right of action of plaintiff's intestate accrued at the time said note became due, and the statute of limitations commenced running against him, and the subsequent removal of defendants from the state, and their remaining absent with the knowledge of plaintiff's intestate that they were absent and where they resided in another state, does not prevent the continuing of the running of the statute of limitations. 2. The plaintiff's right of action having accrued more than ten years before the commencement of the suit is barred by limitation, and the evidence is not sufficient in law to relieve plaintiff from the operation of said statute.” The court refused so to instruct. The court found for the plaintiff.

Noell, Scott & Watkins, for appellants.

I. The statute seems to apply more especially to those individuals absconding or concealing themselves to evade payment, and not to those who remove from the state years after the indebtedness accrued with bona fide intentions. The defendants came back to the county several times, and suit could have been instituted against them without resorting to the extraordinary process of attachment. They slumbered on their rights, and they should be held to abide by the consequences of their neglect. The court erred in refusing the instructions asked. (21 Mo. 22; 22 Mo. 330; 2 Mo. 220; 12 Mo. 239; 13 Mo. 159.)

II. The action is improperly commenced in the name of Frissell, executor of Cook, who was surviving administrator of Maddin. Cook being dead, the action must be prosecuted in the name of the representatives of both of Thomas Maddin's administrators, or the administrator de bonis non of Thomas Maddin.Frissell, for respondent.

I. The fact that Cook knew that defendants had removed can in nowise be material. (See Garth v. Robards, 20 Mo. 523.) The ordinary process of the law could not reach them.

NAPTON, Judge, delivered the opinion of the court.

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