Fidelity & Deposit Co. of Maryland v. Boundy

• Decision Date: 03 February 1942
• Citation: 158 S.W.2d 243,236 Mo.App. 656
• Parties: FIDELITY AND DEPOSIT COMPANY OF MARYLAND, A CORPORATION, APPELLANT, v. FRANK J. BOUNDY, RESPONDENT
• Court: Missouri Court of Appeals

158 S.W.2d 243

236 Mo.App. 656

FIDELITY AND DEPOSIT COMPANY OF MARYLAND, A CORPORATION, APPELLANT, v. FRANK J. BOUNDY, RESPONDENT

Court of Appeals of Missouri, St. Louis

February 3, 1942

Appeal from Circuit Court of City of St. Louis.--Hon. James E McLaughlin, Judge.

AFFIRMED.

Judgment affirmed.

Leahy Walther & Hecker and Herbert E. Barnard for appellant.

(1) Where amended answer asserts special plea of limitations and no other defense the allegations of plaintiff's petition are admitted. R. S. Mo. 1939, secs. 922, 926, 928, 980. (2) If first pleading by defendant is general denial, then defendant waives his right to plead limitations. American Radiator Co. v. Connor Plumbing & Htg. Co., 277 Mo. 548 211 S.W. 56; Landers Lumber Co. v. Short, 81 S.W.2d 375; Conkling v. Henry Quellmalz Lumber & Mfg. Co., 225 Mo.App. 494, 34 S.W.2d 990. (3) Confinement in penitentiary outside of State suspends the running of the Statute of Limitations. R. S. Mo. 1939, secs. 1023, 1031; Johnson v. Smith, 43 Mo. 499; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21; State ex rel. v. Allen, 132 Mo.App. 98, 114-115; Sec. 9225, R. S. Mo. 1939. (4) When all defenses are waived except one and that fails as a matter of law, it is duty of court to enter judgment for plaintiff.

Respondent's not represented.

HUGHES, P. J. McCullen, J., concurs; Anderson, J., not sitting.

OPINION

HUGHES, P. J.--

Plaintiff's petition filed August 2, 1939, seeks recovery of the amount paid by it on December 13, 1933, to the Special Deputy Commissioner of Finance of the State of Missouri in charge of property and affairs of West St. Louis Trust Company, in liquidation, which payment was made by reason of defalcations by defendant, who was an employee of the Trust Company. The plaintiff seeks to escape the effect of the Statute of Limitations (Section 1014, R. S. 1939) by an allegation in the petition that subsequent to the 13th day of December, 1933, and prior to the date of filing suit, the defendant, Boundy, was absent from the State of Missouri for a period of about eighteen months and not subject to its judicial process.

The case was tried before the court, a jury being waived, and resulted in a finding and judgment for defendant, following which plaintiff unavailingly sought a new trial and it being denied the appeal was taken to this court.

There was no dispute as to the facts which are pertinent to the points presented on appeal. The evidence was that defendant Boundy had been an employee of the Trust Company from July 18, 1919, to on or about the 13th day of January, 1933, when the trust company was closed and placed in charge of the Finance Commissioner for liquidation; thereafter defendant was convicted in the United States District Court, and was, on February 3, 1935, committed to the Intermediate Reformatory at Chillicothe, Ohio, where he was restrained until October 13, 1936, when he was released from custody and immediately returned to St. Louis, and went to the home where his wife then lived, 5431 Queens Avenue, St. Louis, Missouri, where he has since resided; that at the time of his conviction and commitment he and his wife resided at 5100 Vernon Avenue, St. Louis, Missouri.

The defendant further testified as follows:

"That bank closed on or about the 13th day of January, 1933. My next employment was with the Cupples-Hesse Envelope Company, where I commenced working in January, 1934. In the year, 1935, I left the State of Missouri for Chillicothe, Ohio, where I was in the United States Reformatory. I left the Reformatory in October, 1936, either on the 13th or the 16th, I do not recall exactly which. While in Chillicothe, Ohio, I had correspondence with my wife at all times. I never had any intention of abandoning the State of Missouri as my residence and when released from the Reformatory I came directly back to St. Louis to my home, and within a reasonable time I went out to see my former employers at Cupples-Hesse and they gave me two weeks rest, after which time I went back to work for Cupples-Hesse Envelope Company, and am still in their employ."

Appellant's abstract states that defendant filed answer on September 13, 1939, which was a general denial, and afterwards on March 18, 1940, filed an amended answer which did not contain a denial of the allegations of the petition but was solely to the effect that any cause of action that plaintiff may have had is now barred by the Statute of Limitations, as said cause of action accrued more than five years prior to the filing of said suit.

Appellant urges error on the part of the trial court in considering the plea of limitations raised for the first time in an amended answer after a general denial has remained on file for several months. If such point was otherwise of merit, it is not properly before us. It does not appear from the abstract of the bill of exceptions that appellant made such point in the trial of the case, or that the first answer was preserved in the bill of exceptions. There is but one way in which to get an abandoned pleading into the record and that is by introducing it into the evidence and making it a part of the bill of exceptions. [Moore v. Leach (Mo. App.), 14 S.W.2d 21; Briscoe v. Street R. Co., 222 Mo. 104, 120 S.W. 1162; Lindsey v. American Car & Foundry Co. (Mo. App), 16 S.W. (2) 613; Landers Lumber Co. v. Short (Mo. App.), 81 S.W.2d 375.] Furthermore, plaintiff not only failed to offer the abandoned answer in evidence, but tried the case on the theory that the Statute of Limitations was the main issue in the case, and plaintiff having proceeded on that theory in the trial court cannot change its theory on appeal. The point is ruled against appellant.

Appellant's cause of action accrued on December 13, 1933, and the Statute of Limitations began to operate from that date. This suit was filed on August 2, 1939, five years seven months and nineteen days after the cause of action accrued, and was therefore barred by the Statute of Limitations unless the counting of time under that statute was arrested while the defendant was restrained of his liberty in the prison in Ohio. Appellant contends that the time defendant was in the Ohio prison should not be counted in computing the time under the Statute of Limitations, and relies upon Section 1023, Revised Statutes 1939, which is as follows:

"If at any time when any cause of action herein specified accrues against any person who is a resident of this State, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the State; and if, after such cause of action shall have accrued, such person depart from and reside out of this 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 cause of action in this case having accrued long before defendant was taken to Ohio, it is only the latter part of the above Section that is claimed to be applicable. If that part of the section is to be applicable here, we must determine that the defendant not only departed from but that he resided in Ohio for the duration of his imprisonment. That he was out of the State of Missouri and was in Ohio for about eighteen (twenty) months is conceded. He certainly did not depart from Missouri voluntarily; he never intended to depart; it was against his will. Having a place of abode in St. Louis, Missouri, as he did, the defendant never voluntarily abandoned it, and this is the first instance we are able to find where it has even been claimed, in effect at least, that a man could establish his residence behind the bars of a prison. Such a thing is not compatible with the sense conveyed to the ordinary mind of a man's residence.

This section of our law has been before the courts many times in cases where the debtor has voluntarily left the State. The authorities are reviewed in the case of State ex rel. v. Allen, 132 Mo.App. 98, 113-114, 111 S.W. 622, an opinion of this Court written by Judge GOODE, in which it is said:

"The effect of the decisions is as follows: if, while he is a resident of the State, a cause of action accrues against any one, and he afterwards departs from the State and resides elsewhere, leaving no member of his family on whom process can be served at his usual place of abode in the State, the course of the statute is checked. [Cook's Admr. v Holmes, 29 Mo. 61.] If such resident goes outside the State with the intention of returning, and his family remains at his usual place of...