Garth v. Robards
Decision Date | 31 March 1855 |
Citation | 20 Mo. 523 |
Parties | GARTH, Appellant, v. ROBARDS, Respondent. |
Court | Missouri Supreme Court |
1. A person who goes to California with the intention of returning, leaving his family and property in Missouri, although he may remain there engaged in business for several months, is not within the last clause of the seventh section of the second article of the statute of limitations. The operation of the statute is not suspended during his absence.
Appeal from Hannibal Court of Common Pleas.
This action was brought in April, 1853, to recover an unappropriated balance of money advanced by the plaintiff to the defendant in 1846, for the purchase of hemp on the plaintiff's account. The defendant, in his answer, denied the justice of the demand, and relied upon the statute of limitations.
At the trial before a jury, it appeared in evidence that in April, 1849, the defendant left Hannibal, his place of residence, for California, where he arrived in the winter of 1849-50. He remained there until October, 1850, and returned to Hannibal in January or February, 1851. During his stay in California, he was engaged part of the time in mining, and part of the time in keeping a provision store. In addition to much other real property in Hannibal, he left behind him a dwelling house, in which his family, consisting of a wife and several children, lived during his absence. There was evidence of declarations made by him before leaving of an intention to return.
The following instruction, numbered as the second, was given to the jury, among others:
The plaintiff took a non-suit and afterwards appealed.
Mr. Broadhead, for appellant.
The evidence brings the defendant within the saving of the second clause of the seventh section of the second article of the statute of limitations. The object of that clause clearly is to prevent the statute from running during the time when the plaintiff has not a complete and easy remedy by the ordinary process of law. The ordinary process is a summons, which is served upon the defendant personally, or by leaving a copy at his “usual place of abode.” In this case, it could not have been resorted...
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