Dicker v. Binkley, 19250
| Decision Date | 18 July 1977 |
| Docket Number | No. 19250,19250 |
| Citation | 555 S.W.2d 495 |
| Parties | Edward T. DICKER, Appellant, v. Robert R. BINKLEY, Jr., Appellee. |
| Court | Texas Court of Appeals |
Richard H. Elliott, Dallas, for appellant.
John B. Atwood, III, Creel, Atwood & Spinuzzi, Dallas, for appellee.
This is a suit in the nature of an equitable bill of review brought by appellee Robert R. Binkley, Jr., against appellant Edward T. Dicker to set aside a default judgment previously entered against Binkley. Upon trial before the court, the court found that the default judgment was void because of defective service of process and that Binkley had a good and meritorious defense. It set aside its prior judgment and ordered that Dicker take nothing. We reverse.
The primary issue on this appeal is whether Binkley's proffered defense of the statute of limitations constituted a meritorious defense sufficient to justify vacation of the default judgment. Although Dicker also challenges the invalidation of the judgment because of defective service of process, our examination of the record leads us to conclude that even if the judgment was void, Binkley has failed to show the meritorious defense prerequisite to relief by bill of review. As his meritorious defense, Binkley asserted that the suit was barred by the four-year statute of limitations provided in article 5527 of the Texas Revised Civil Statutes Annotated (Vernon 1958). The note was executed in Dallas, Texas, on February 1, 1965, and made payable within one year. Although the note matured on February 1, 1966, suit was not filed until May 14, 1975, over nine years later. Under most circumstances, the suit would now be barred; however, Dicker asserts that the statute of limitations has been tolled under the provisions of article 5537 of the Texas Revised Civil Statutes Annotated (Vernon 1958). We agree. Since the obligation was incurred while Binkley was physically present in the state, the statute of limitations was tolled during his subsequent absence and did not bar the suit on the note.
Article 5537 provides:
If any person against whom there shall be a cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person's absence shall not be accounted or taken as a part of the time limited by any provision of this title.
The record reflects that Binkley was an Oklahoma resident who occasionally visited Texas for business purposes. He testified that he was never in Texas more than sixty days in any given year, and even assuming that maximum figure as a calculatory base, the time he was present in Texas does not exceed the four-year limitations period.
In attempting to avoid the tolling effect and justify his defense, Binkley asserts that article 5537 does not halt the running of limitations when service could be achieved under the long-arm statutes. Alternatively, he urges that the tolling statute is inapplicable to nonresidents who are, by definition, absent from the state without expectation of return. We cannot accept these arguments. In Vaughn v. Deitz, 430 S.W.2d 487 (Tex.1968), our supreme court held that the tolling provisions of article 5537 applied notwithstanding the availability of substituted service of process upon the nonresident defendant. Under Vaughn, "presence," for the purposes of avoiding the tolling of limitations, means actual presence within the territorial limits of the state and not the constructive presence which justifies service under the long-arm statutes. Therefore, under Vaughn we hold that the statute of limitations was tolled during Binkley's absence from the territorial limits of this state and that the original suit was timely filed.
Secondarily, Binkley urges that the tolling statute only applies to Texas residents and cannot apply to nonresidents who are not expected to return to the state. We disagree. Even assuming Binkley's nonresident status, we must hold, under the decisions of our supreme court, that his physical presence in the state at the time the debt was incurred subjected him to operation of the tolling provisions. In Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932, 934 (1944), our supreme court held that while article 5537 is generally inapplicable to nonresidents, it does apply to nonresidents who were...
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