Durr v. Hardesty

• Decision Date: 24 April 1956
• Docket Number: No. 9539,9539
• Citation: 76 N.W.2d 393,76 S.D. 232
• Parties: John DURR, Plaintiff and Appellant, v. William J. HARDESTY and Fortes N. King, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 393

76 N.W.2d 393

76 S.D. 232

John DURR, Plaintiff and Appellant, v. William J. HARDESTY and Fortes N. King, Defendants and Respondents.

No. 9539.

Supreme Court of South Dakota.

April 24, 1956.

Smiley & Clark, Belle Fourche, for plaintiff and appellant.

Gale B. Wyman, Belle Fourche, Roswell Bottum, Rapid City, for defendants and respondents.

McCLASKEY, Circuit Judge.

On January 31, 1931 defendants Hardesty and King executed a note to First National Bank of Belle Fourche, South Dakota. It became due October 15, 1931. In 1939, the bank having failed, the note was sold by the receiver to plaintiff, then and since a resident of Belle Fourche. Suit was commenced on April 12, 1952. In the course of the trial it became apparent that the six-year period of limitation had run against Hardesty and as to him the case was abandoned by plaintiff. Trial was continued against King and the issues herein involve him alone. For convenience the term defendant as used hereafter refers to King. So far as this appeal is concerned the issue is whether the suit is barred by the six-year limitation as the trial court decided.

From 1884 to April 1, 1947 defendant King resided at Alzada, Montana. On or about April 1, 1947 he moved to Belle Fourche, 37 or 38 miles distant, and has there had his home and legal residence ever since. Prior to the move, Belle Fourche was his principal trading point and he made numerous trips there each year and did his banking there. These trips were open and public with no attempt at concealment.

Plaintiff and appellant presents his principal contentions by posing three questions and we will answer them in the order of their appearance.

First Question:

'Can our Statute of Limitations on actions be satisfied by cumulating single days over a long period of time in addition to established residence periods, so that a total of the statutory period can be built up?'

The answer involves consideration of SDC Supp. 33.0203 'If when the cause of action shall accrue against any person he shall be cut of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action; * * *.'

The word 'return' has been construed as meaning coming into the state as well as coming back into it after moving from it. McConnell v. Spicker, 15 S.D. 98, 87 N.W. 574.

In states whose limitations statutes are substantially to the same effect as ours the period of limitation runs while a party subject to suit is physically present in the state for a sufficient time, though he have his legal residence in another state when the cause of action accrues. It commences to run when he comes openly into the state. Palmer v. Shaw, 16 Cal. 93; Mack v. Mendels, 249 N.Y. 356, 164 N.E. 248, 61 A.L.R. 386; Faw v. Roberdeau, 3 Cranch 174, 7 U. S. 174, 2 L.Ed. 402; Byrne v. Crowninshield, 1 Pick. 263, 18 Mass. 262; Hysinger v. Baltzell, 3 Gill. & J., Md., 158.

In these cases the physical presence in the state was continuous for the limitation period, but such need not be the case. Interrupted occasions of presence, providing they are so open and notorious as to afford a plaintiff using reasonable diligence an opportunity to have process personally served within the state, may be cumulated to aggregate the limitation period. 'Our opinion therefore is, that to make the bar of the statute effectual, the debtor must have been within the State, subject to be sued, during the whole period provided as a bar, but it is not necessary that it should be continuous, it may be composed of different portions of time, if the aggregate makes the period of time, which is designated as a bar, which in this case would be six years.' Smith v. Bond, 8 Ala. 386; see also Fairfax Nat. Bank v. Burt, 197 Okl. 517, 176 P.2d 216; Stanley v. Stanley, 47 Ohio 225, 24 N.E. 493, 8 L.R.A. 333; Foster v. Butler, 164 Cal. 623, 130 P. 6; Whitcomb v. Keator, 59 Wis. 609, 18 N.W. 469.

The period of presence in the state must be open and public so that the plaintiff can by the exercise of reasonable diligence find the defendant and have him served. Palmer v. Shaw, 16 Cal. 93; Fowler v. Hunt, 10 Johns., N.Y., 463; Hysinger v. Baltzell, 3 Gill. & J., Md., 158; Randall v. Wilkins, 4 Denio, N.Y., 577. Under the facts found, the answer to the First Question is in the affirmative.

The trial court found that while defendant was a resident of Montana, and after the cause of action accrued, he was present in Belle Fourche more than 600 days during which he could easily have been served with process, and that thereafter he became a resident of Belle Fourche and continued so for an additional five years.

Appellant challenges this finding in his Second Question:

'Does the record evidence sustain the Court's finding that the defendant was present in the State at least Six Hundred (600) days in the interval between the accrual of the action and the establishment of his South Dakota residence, in addition to his Five (5) years of residence?'

The testimony of defendant King was that he had lived at Alzada, Montana, since 1884. That Alzada was a hamlet of 75 to 100 people with one and sometimes two stores. That Belle Fourche was his principal trading point and he did his banking there. That after the note became due on October 15, 1931 he made many trips there until April 1, 1947 when he moved there and has since made it his residence. That he had known plaintiff 35 to 40 years, and had dealt with him when plaintiff was employed at the Smiley-Gay store. That after plaintiff opened a store of his own defendant was in the store three or four times a year. That he never concealed his presence when in Belle Fourche and many times walked past plaintiff's store on the sidewalk.

Plaintiff's principal point is that the evidence dence does not warrant the finding that defendant was present in Belle Fourche more than 600 days. This is based on the contention that defendant's testimony is so conflicting and contradictory that 600 days of presence prior to the beginning of his five-year period of residence cannot be found.

Plaintiff does not discuss the testimony of defendant's daughter Mrs. Hardesty. She resided either in defendant's home at Alzada or in Belle Fourche, and was in an excellent position to know. She testified that between October 15, 1931 when the note became due, and April 1, 1947 when defendant moved to Belle Fourche, he was in Belle Fourche on an average of four times each month. Computation shows that these visits aggregate 734 times. The length of his stays in Belle Fourche varied but the court was warranted in finding that they aggregated 600 days or more.

Defendant was nearly 78 years of age and the record shows that his memory was uncertain and vacillatory. He did contradict himself. The court observed him and questioned him and was in an advantageous position to evaluate his testimony. The situation well illustrates the reason behind the rule that a trial court's finding will not be disturbed where there is substantial evidence to support it and there is not a clear preponderance of evidence against it. Johnston v. Eriksson, 71 S.D. 268, 23 N.W.2d 799; Whitman v. Hanson, 69 S.D. 610, 13 N.W.2d 495; Rhode v. Farup, 67 S.D. 437, 293 N.W. 632.

This rule comes under consideration when there is a conflict of testimony between witnesses. Here defendant and Mrs. Hardesty were the only witnesses on this point and there arises the question if the rule has application where the testimony of one of them is conflicting within itself and/or with that of the other. 'Upon the triers of fact rests the responsibility to reconcile, if possible, any apparent conflict, whether the same arises upon the entire case or in the testimony of a single witness, and to effectuate all the evidence, when the nature of the case will admit of such a disposition; or if the conflict is irreconcilable, to place their own value on the contradictory evidence.' Darling v. Pacific Electric Ry. Co., 197 Cal. 702, 242 P. 703, 706; See also Johnson v. Ellmers, 6 Cir., 295 F. 685; Rosella v. Paxinos, 110 Cal.App. 299, 294 P. 39.

The testimony of Mrs. Hardesty substantially supports the finding. It cannot be said that defendant's wavering and contradictory statements clearly preponderate against it. The finding may not be disturbed.

It then appears that defendant's 600 days presence here while he was a nonresident, coupled with his five years of actual residence, aggregated a bar of limitation in his favor unless we must deduct from the latter the periods when he visited out of the state and was not actually present here. This brings us to plaintiff's third question.

Third Question:

'If each day of presence in the State of South Dakota can be added together to compute the full period of time to establish the Statute of Limitations, is the converse true that absences from the State can be added together to reduce the period of time within the State?'

This involves consideration of the second clause of SDC Supp. 33.0203. In some limitations cases the expression 'and reside out of the state' has been treated as meaning absence from the state at a fixed place of residence. In others the expression has been interpreted to mean simply living for a temporary period or periods in another state without having a fixed place of residence there. However, so varied were the facts in those cases and/or so different were qualifying additional phrases in the statutes under consideration, that what may be regarded as a settled rule cannot with confidence be determined....