Fisher v. Burk

• Decision Date: 01 January 1920
• Docket Number: 21241
• Court: Mississippi Supreme Court
• Parties: Fisher v. Burk, Et Al.

86 So. 600

123 Miss. 781

Fisher v. Burk, Et Al.

No. 21241

Supreme Court of Mississippi

January 1, 1920

1. LIMITATION OF ACTIONS. Breach of contract in another state governed by lex fori.

Where parties residing in another state make a contract to be performed there, and such contract is breached in such state and none of said parties have ever lived in Mississippi, the right of action for damages for such breach is barred by the Mississippi statute of limitations, where the suit is brought in the courts of this state.

2. LIMITATION OF ACTIONS. Attachment on foreign action does not make cause of action accrue in Mississippi.

The fact that an attachment is sought under the law of this state to establish a lien upon property situated in this state to enforce the payment of a debt or right of action accruing in another state, does not make the cause of action accrue in this state. Trotter v. Erwin, 27 Miss. 772, cited.

3. LIMITATION OF ACTIONS. Statute of Mississippi applies to right of action arising in another state and sued on in Mississippi.

Where a right of action arises in another state and suit is brought on such right in this state, when the defendant has never resided in this state, the Mississippi statute of limitations applies.

HON. L F. EASTERLING, Chancellor.

Suit by William C. Fisher against Charles A. Burk and another. Separate demurrers to parts of the bill sustained as to all except certain matters, and plaintiff appeals. Affirmed and remanded.

Housum & Housum, for appellant.

The chancellor erred in holding that the six years statute of limitations of the state of Mississippi barred the cause of action set up in the bill as amended. (A) Section 3097 chapter 87, Miss. Code, provides: "All actions for which no other period of limitation is prescribed shall be commenced with in six years next after the cause of such action accrued, and not after.

In support of the contention that six years statute is a bar the defendants relied upon three cases, which are Hunt v. Belknap, 78 Miss. 76, 28 So. 751; Wright v. Mordaunt, 77 Miss. 537, 27 So. 640; and Robinson v. Moore, 76 Miss. 89, 23 So. 631.

The appellant here, complainant below, contended that the six year statute did not apply on account of the exception for in another section relating to the nonresidence of the defendants which is section 2748, par. 3108, chapter 87, and is as follows: "If, after any cause of action have accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after his return."

On the facts of this case, barred by section 2754 and the statute of Tennessee as to the other assignment of error, it is sufficient to say that we find no reversible error. Affirmed.

In the case of Wright v. Mordaunt, supra the court said as follows: The promissory note sued on was executed in Illinois and payable in Illinois, and both parties resided in that state at the time of its execution and maturity. Its date is July 1, 1892, and it matured September 4, 1892, The law of Illinois does not bar actions on promissory notes until ten years have clasped after maturity. In the spring of 1898 the maker, Mordaunt, took up his residence in Mississippi, and on June 6, 1899, he was sued on the note by the payee, Wright, and pleaded the six years statute of limitations; and, his demurrer to Wright's replication setting up the above facts being sustained, Wright appeals.

"The note was barred when the action was begun. The lex fori governs, and the law of this forum is that six years bar an action on a promissory note; and more than six years elapsed after the maturity of this note. The fact that this period expired in part before the maker became a citizen of this state makes no difference. It is the lapse of time regardless of place, which bars in such cases as this. Section 2737, Code, makes six years a bar. No statute in a case like this makes any exception, to deprive defendant of the right to invoke the lapse of time as a bar. Code, sec. 2748, has no application, for it applies to a cause of action accrued in this state, and deprives an absent party of the right to avail of time expired during his absence. Section 2745 has no application because its sole purpose and effect are to give to one sued in this state the benefit of a bar completed elsewhere. The whole matter is statutory. A statute (Code, Sec. 2737) makes six years a bar. No other, statute applicable to the curcumstances of this case creates any exception, or in any way modifies the right of the defendant to invoke the bar of six years given by the general statute. Therefore Mr. Wright's action was barred. Robinson v. Moore, 76 Miss. 89, 23 So. 631, is of no benefit to appellant, because in that case the right of action accrued in this state. Affirmed.

The chancellor and counsel for the appellees here, where unable to reconcile these three decisions, and were of the opinion that under these three decisions the cause of action was barred by the six years' statute.

It will be noticed in the case of Wright v. Mordaunt, supra, that the note sued on was executed in Illinois, payable in Illinois, and that both parties resided in that state at the time of its execution and maturity, the note being dated in 1892 and matured in 1892. In the spring of 1898 the maker, Mordaunt, took up his residence in Mississippi, and on June 8, 1899, more than six years after the maturity of the note, he was sued on the note by the payee Wright.

It is apparent that Mordaunt moved to Mississippi in the spring of 1898, before the statute of limitations had run against the note; however, at the time suit was brought he was a resident of Mississippi. In the case at bar neither Burk nor his wife have ever been residents of Mississippi, and so far as the record discloses, neither one of them has ever been in the state of Mississippi, even for temporary purposes, so that personal service could have been secured upon them. At the time of the commencement of the suit in Illinois, at the time of the execution of the contract in 1908, and down to and including the time of the filing of the original bill in Mississippi in the present suit, Burk and his wife were residents and citizens of the city of Decatur, Macon County, Illinois. During the pendency of the present suit Burk and his wife moved from Illinois to the state of Indiana, as averred in the amended bill of complaint, where they now reside.

Under these circumstances it is respectfully insisted that neither Burk nor his wife can invoke the running of the statute of limitations.

(B) The reason for the exception to the statute preventing a bar from running in the absence of the residents from the state, is that during such absence the plaintiff cannot sue. See case of French v. Davis, 38 Miss. 218.

(C) And it has been held that the facts that the debtor has property liable to attachment is immaterial; the statute follows the person and not the property of the debtor. Fisher v. Fisher, 43 Miss. 212.

(D) Neither Burk nor his wife had a residence or home in the state of Mississippi so that service of process might have been had by leaving with a member of their family or posting a notice. Dent v. Jones, 50 Miss. 265.

(E) The statute applies equally as well where the defendant has not been in the state at all, as where the defendant resided in the state at the time the cause of action accrued and subsequently removed. Robinson v. Moore, supra.

In the case of Gentry v. Gamblin, 79 Miss. 437, 28 So. 809, land belonging to the defendant was sold under a trust deed, and the purchaser conveyed it to A, who, at the request of the defendant advanced the amount of the debt, under an agreement that, if the defendant should pay the debt by a certain time, the land would be reconveyed to him. The defendant failed to make such payment. Held, that he could not plead as a defense to a suit by the grantor of A for the possession of the land, or to be subrogated to the rights of A. That the conveyance from the original purchaser to A was defective.

The bill was filed for the purpose of cancelling any claim of Gamblin's as a cloud on complainant's title, and for writ of possession, or for subrogation to the rights of Lee & Bros, to the amount they paid Quarles & Company and general relief.

(F) The cause of action never accrued in this state until the complainant elected to avail himself of the remedies afforded by the Mississippi laws, and the defendants have seen fit to come in and enter their personal appearances and submit themselves to the jurisdiction of the court, so that for the first time on the filing of this bill the statute of limitations begins to run, so far as any other or further prosecution is now relied upon in the state of Mississippi. We respectfully insist that the chancellor erred in holding that the six years statute of limitations barred the maintenance of this suit.

(G) When does a cause of action accrue or arise within the meaning of the statute of limitations, under section 2748, chapter 87? The statute of limitations section 2748, chapter 87, is as follows: "If, after any cause of action accrues in this state, the person against whom it has accrued be absent from and reside out of the state," etc.

The chancellor seemed to hold that because the complainant might have come to Mississippi at any time during the period of six years and brought the suit and did not do it, therefore he could not maintain the suit on account of the mere lapse of time.

The statutes of limitations in all the states are somewhat similar, and in Illinois, in the appellate court, in the case of McCuigan v. Rolf...