Griffin v. Woolford

• Citation: 41 S.E. 949,100 Va. 473
• Parties: GRIFFIN v. WOOLFORD.
• Decision Date: 26 June 1902
• Court: Supreme Court of Virginia

41 S.E. 949

100 Va. 473

GRIFFIN

v.WOOLFORD.

Supreme Court of Appeals of Virginia.

June 26, 1902.

RES JUDICATA—LIMITATIONS—DEPARTURE FROM STATE.

1. General expressions of the court in an opinion, if they go beyond the case, do not control the judgment in a subsequent suit when the very point is presented.

2. It is essential, in order for a departure from the state to stop the running of the statute of limitations, under Code, § 2933, before amendment, that the defendant reside in the state before the right of action accrued, and departed from the state after such time.

3. Residence, as distinguished from a mere temporary locality of existence, is defined to be the place of abode, dwelling, or habitation for some continuous time.

Error to circuit court of city of Roanoke.

Action by Griffin, receiver, against C. W. Woolford. Judgment for defendant and plaintiff brings error. Affirmed.

Scott & Staples and Malcolm Griffin, for plaintiff in error.

Everett Perkins, for defendant in error.

WHITTLE, J. The controversy in this case arises out of the following facts: On January 22, 1892, C. A. Woolford and the defendant in error, C. W. Woolford, made two notes to the New Lansdowne Land Company, which were dated and made payable at Roan oke, Va., one and two years after date, respectively. These notes' were indorsed and delivered by the payee to the Lansdowne Improvement Company. Subsequently plaintiff in error, having been appointed receiver of the latter company, recovered judgment upon the notes against C. A. Woolford and the indorser, the New Lansdowne Land Company. C. W. Woolford was made a defendant to that action, but was not served with process.

So far as the record discloses, no further effort was made to collect these notes from C. W. Woolford until the fall of 1901, when Receiver Griffin instituted an action of debt against him, with an ancillary attachment against certain parties who were ascertained to be indebted to him, in the circuit court of Roanoke. Affidavit having been made that C. W. Woolford was a nonresident, he was proceeded against by an order of publication. To that action the defendant filed pleas of nil debet and the statute of limitations.

There was a special replication to the latter plea that at the time of the execution of the notes in question the defendant was a resident of the state of Virginia, and, by departing without the same within less than 12 months thereafter, obstructed, and by ever since remaining a nonresident of the state had ever since obstructed, the plaintiff in his right of action upon the notes. To that replication the defendant filed a special rejoinder putting in issue all its averments.

By agreement of parties all matters of law and fact were submitted to the court which rendered judgment for the defendant.

The provision relied on to defeat the bar of the statute of limitations is found in section 2933 of the Code of 1887, which is as follows:

"Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this state, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But this action shall not avail against any other person than him so obstructing, notwithstanding another might have been jointly sued with him, if there had been no such obstruction. And upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such state or country."

The plaintiff in error rests his case on the affidavit of the nonresidence of the defendant in error, upon which the order of publication was awarded, and the inference that the notes were made in Virginia, to be drawn from the fact that they purport to have been dated at Roanoke.

On the other hand, it affirmatively appearsfrom the evidence that the defendant in error was a resident of the city of Baltimore, in the state of Maryland, and had never resided in the state of Virginia. Indeed, it was shown that he had never been to Roanoke on more than three occasions, —probably only twice, and then on business trips, neither of which lasted longer than a day. The dates of these visits are not fixed with accuracy; the witness expressing the opinion that they were during the years 1890, 1891, and 1892.

The sole question submitted for decision is whether or not, under that state of facts, the plaintiff in error has brought his case within the provisions of the statute.

He relies upon the case of Wilkinson v. Holloway, 7 Leigh, 277, as decisive of the question. That case arose under section 14, C. 128, 1 Rev. Code 1819, which, in the case of Ficklin's Ex'rs v. Carrington, 31 Grat. 219, was declared to be substantially of the same import as section 2933, though differing somewhat in phraseology. The last paragraph of the syllabus of that case is as follows:

"A debt Is contracted at Petersburg in Virginia, for goods sold there. The debtor resides at the time, and continues to reside, in North Carolina. The creditor brings suit in a court of this state against the debtor, who pleads the statute of limitations in bar. Held, by the fourteenth section of that statute (1 Rev. Code, c. 128, p. 491), he is precluded from making such defense."

Notwithstanding that statement by the distinguished reporter, his report in the case does not clearly show whether Holloway was a resident of Virginia or of North Carolina at the time he contracted the debt with Wilkinson & Co., and at the time it became payable. Nothing appears in the statement of the facts of the case as to his residence, and Judges Brockenbrough and Cabell do not discuss the subject in their opinions. Nor does the language of Judge Brooke remove the uncertainty. He says: "As the debt of Holloway to the plaintiff was contracted in Virginia, and he soon afterwards went or returned to North Carolina, and has resided there ever since, I cannot see how he can avail himself of the statute of limitations."

Judge Carr, on the other hand, seems to have been of opinion that Holloway was a resident of Virginia when the debt was contracted, for he says: "He left Virginia as soon as he executed the instrument, and resided in North Carolina, thereby obstructing the plaintiff's action."

Mr. Johnson, of counsel for Holloway, in adverting to the question as to where the bond was executed, remarked that, "To say the least, the facts touching this point do not appear in the record with sufficient certainty."

And in speaking of the case, the author, in 1 Rob. New Prac. p. 620, observes: "A plaintiff had the benefit of this provision in an action against a defendant who soon after executing a note went from Virginia to reside in another state, thereby obstructing the plaintiff's action."

Thus it appears that the value of Wilkinson v. Holloway as a precedent to bring this case within the influence of section 2933 is greatly impaired, if not destroyed, by the...