Drake v. Bigelow

• Decision Date: 22 July 1904
• Docket Number: Nos. 13,977 - (189).,s. 13,977 - (189).
• Parties: ALEXANDER M. DRAKE v. GEORGE L. BIGELOW.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

93 Minn. 112

ALEXANDER M. DRAKE v. GEORGE L. BIGELOW.¹

Nos. 13,977 - (189).

Supreme Court of Minnesota.

July 22, 1904.

Action in the district court for Ramsey county to recover $250 and interest upon a promissory note. The case was tried before Kelly, J., who found in favor of defendant. From a judgment entered pursuant to the findings, plaintiff appealed. Affirmed.

Franklin H. Griggs, for appellant.

How, Taylor & Mitchell, for respondent.

LEWIS, J.

Action upon the following promissory note:

                      $250.00.                       New York, Aug. 10th, 1891
                

Five months after date, I promise to pay to the order of A. M. Drake, two hundred fifty dollars at his office in Drake Block, St. Paul, Minn. Value received, with interest at 8 per cent.

                                                               George L. Bigelow
                

At the time of the execution and delivery of the note, defendant was a resident of New York, where he remained until November, 1891, when he moved to New South Wales, arriving in February, 1892, and continuously residing there until April, 1899, when he went to Honolulu, where he has since resided. Plaintiff was a resident of St. Paul, Minnesota, at the time of the execution and delivery of the note and until 1900, since which time he has been a resident of the state of Oregon. The summons in this action was served on defendant September 24, 1902, while temporarily in Minnesota, and he defends upon the ground that the note was barred by the statute of limitations.

Plaintiff proceeds upon the theory that the cause of action accrued within the state of Minnesota, and that within section 5145, G. S. 1894, the statute did not run during the time defendant was without the state. Section 5145 provides two certain exceptions when the statute shall not run: First. When a resident of this state is temporarily out of the state at the time the cause of action accrues against him, the time of his absence is not taken into consideration, and the statute commences to run from the time of his return. Second. If, when a cause of action has accrued against a resident of this state, he then departs therefrom, and resides out of the state, the statute does not commence to run until after his return. The first case applies to a resident only temporarily absent, and the second to a resident who goes away with no intention of returning. Defendant does not come within either of these exceptions. He was not a resident of Minnesota at any time and the cause of action did not accrue within this state simply because it was made payable here. The note had its origin in the state of New York; and the cause of action did not accrue until the culmination of those circumstances which resulted in a right of action, coupled with an opportunity to...