Doughty v. Funk
Decision Date | 06 September 1905 |
Citation | 84 P. 484,15 Okla. 643,1905 OK 71 |
Parties | DOUGHTY v. FUNK. |
Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 11, 1906.
Syllabus by the Court.
Under the provisions of section 3894, St. 1893, which provides "Where the cause of action has arisen in another state or country, between nonresidents of this territory, and, by the laws of the state or country where the cause of action arose, an action cannot be maintained thereon by reason of lapse of time, no action maintained thereon in this territory"-a cause of action upon a contract made in the state of Kansas, which has been barred by the statutes of Nebraska, while the defendant resided there, is not barred in this territory, when the same is not barred by the laws of the state of Kansas or of this territory.
[Ed Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions,§ 445.]
Error from District Court, Kingfisher County; C. F. Irwin, Judge.
Action by James Doughty, receiver of the Union Trust Company, of Sioux City, Iowa, against Jacob P. Funk. Judgment for defendant and plaintiff brings error. Reversed.
Noffsinger & Hinch, for plaintiff in error.
M. J Kane and Charles West, for defendant in error.
The only question presented for determination in this case is dependent for its determination upon the construction to be given to the limitation laws of this territory.
The action is brought to recover upon a promissory note, dated at Peabody, Kan., June 1, 1886, payable to Shupe Tresler & Larke, at Philadelphia, Pa., five years after date. Before the maturity of the note the defendant, maker of the note, removed from Kansas to the state of Nebraska, where he resided when the note matured and until the statute of limitations of that state had barred a recovery on the instrument sued on. The defendant, thereafter removing to the territory of Oklahoma, was sued in the district court of Kingfisher county by plaintiff, as receiver of the Union Trust Company of Philadelphia, Pa., praying judgment upon and for the amount of said note. One of the defenses in said action stated by defendant set forth the bar of the statute of limitations of the state of Nebraska. This defense was demurred to by the plaintiff, and the demurrer was by the court overruled. The plaintiff, standing upon this demurrer, brings the case to this court.
A determination of the question here presented is dependent upon the construction to be given to section 4220 of Wilson's Revised Annotated Statutes of 1903 of this territory, which reads: "Where the cause of action has arisen in another state or country, between nonresidents of this territory, and, by the laws of the state or country where the cause of action arose, an action cannot be maintained thereon by reason of lapse of time, no action maintained thereon in this territory." The question as to whether the language of the foregoing statute is sufficient to bar an action here when the same has been barred by the limitation laws of any other state or country, or is operative only when the action is barred by the statute of the state where the contract was made, executed, and delivered, has been before the courts and determined under statutes of like import with results impossible to harmonize. The case of Osgood v. Artt (D. C.) 10 F. 365, construing the Illinois statute, which reads: "When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and by the laws thereof an action cannot be maintained by reason of lapse of time, an action cannot be maintained in this state"-is a leading case upon the subject, and holds, Blodget, D. J., writing the opinion, as follows: "The evident intention of the Legislature of this state was to say that the removal of debtors into this state should not revive causes of action which had become barred by the laws of other states where they had resided and been subject to suit; that the debtor brought with him the defense he had obtained by his residence elsewhere; and if a debtor leaves this state and takes up his residence elsewhere, and remains there unmolested by suit until suit is barred, it is also barred here."
This conclusion, which holds that an action upon a promissory note, executed in Illinois, which is barred by the statute of any state in which the debtor may have resided, is barred in Illinois, was cited and approved by the Supreme Court of Minnesota in Luce v. Clarke (Minn.) 51 N.W. 1162 where it is held that a cause of action which did not arise in that state, or accrue to a citizen of that state, has come under the operation of the limitation laws of another state, and has been there barred, it is barred in Minnesota. The distinction between these two cases, Osgood v. Artt and Luce v. Clarke, will be observed. In the first the debt was contracted in Illinois, the debtor removed to Missouri and there remained until the debt was barred by the laws of that state, and it was held that the debt was barred in Illinois and elsewhere. In the last case the debt was contracted out of the state of Minnesota and had become barred by the statute of another state from that in which the debt was contracted. It was held that such a bar was a bar to the prosecution of the action in Minnesota. Upon the subject of this last-cited case, and upon a state of facts identical with the facts there passed upon, the Supreme Court of Montana in Chevvier v. Robert (Mont.) 12 P. 702, holds that the action was not barred; the court stating, in construing a statute similar to our own and that of Minnesota in import: "We believe the Legislature intended that the creditor should have the option to say when he would enforce his demand, and that the only statutes he need to regard are those of the forum where he brings his suit and the place where the debt was contracted." There is a conflict in the authorities wherever this subject has been presented to the courts. We will notice one other. In Powers Mercantile Co. v. Blenthen (Minn.) 97 N.W. 1056, the court held that a debt contracted in Minnesota which is afterwards by reason of the removal of the debtor to the state of Washington barred by the statute of limitation of that state is not barred in Minnesota because of the bar in the state of Washington. In this case the debtor removed from the state of Minnesota before the debt became due. The court there had under consideration the particular language of their statute, "When a cause of action has arisen in a state or territory out of this state," and in determining what was meant by the use of such language the court holds that the word "arisen," as there used, means "originating." This conclusion distinguishes that case from Osgood v. Artt, supra, which holds, following Hyman v. McVeigh (Ill.) 10 Chi. Leg. N. 157, that the language, "When a cause of action has arisen," should be construed as meaning "when jurisdiction exists in the courts of the state to adjudicate upon the particular cause of action if invoked." In Steele v. Commissioners of Rutherford, 70 N.C. 137, the court says: "We do not think that the failure to pay the debt...
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