Hancock v. Heugh

• Decision Date: 30 November 1826
• Citation: 1 Mo. 678
• Parties: HANCOCK v. HEUGH, ADMINISTRATRIX OF GILLESPIE.
• Court: Missouri Supreme Court

1 Mo. 678

HANCOCK

v.HEUGH, ADMINISTRATRIX OF GILLESPIE.

Supreme Court of Missouri.

November Term, 1826.

ERROR FROM ST. LOUIS CIRCUIT COURT.

M'GIRK, C. J.

This proceeding originated in the Probate Court. That court gave judgment for the plaintiff in error, from which there was an appeal to the Circuit Court, where the plaintiff recovered $50; not being satisfied with that judgment, has brought a writ of error, to reverse his own judgment. No pleadings were made up in either court, but the matters of law and fact were substituted at large for the determination of the Court. The facts in the case are, that in the year 1817, Gillespie, the defendant intestate, went to the county of Montgomery, and obtained boarding with the plaintiff in his family, and remained so to board with him, till sometime in the year 1820; and that he cultivated a small piece of ground about a mile from said Hancock's, for his pleasure or amusement, which he claimed as his own; that in the year 1820, Gillespie left Hancock's, and went to Scotland, and there remained, till the year 1824, when he returned to the county of St. Louis, in Missouri, and resided in St. Louis till his death, which happened in the latter end of that year. On the trial of the cause in the Circuit Court, the court held, that the demand was all barred by the statute of limitations, except $50, or thereabouts. The inquiry is, whether or not this decision was right. The statute of limitations says, that all actions on the case, &c. shall be brought within five years after the cause of action shall accrue. This proceeding is in the nature of an action on the case. At the latter end of this statute, there is this proviso, viz: “that if any defendant to any civil or criminal cause, herein before recited, absconds or removes himself, or by removal out of the country or territory where he resided when such cause of action accrued, or by any other indirect means, defeats or obstructs the bringing or maintaining all or any of the aforesaid actions, within the respective times limited by this act, such defendant shall not be permitted to plead this act in bar.” The plaintiff's counsel insists, that by the defendant's absence to Scotland, he was defeated and obstructed from having his action within the five years. The court is of this opinion; but on the other side, it is contended, first, that the action on the case is not proved to be defeated, because the plaintiff might, notwithstanding the absence, have brought his action, by leaving a summons at the intestate's usual place of abode, according to the statute; or that he might have proceeded by attachment. As to the first remedy, we think, that by the evidence, Gillespie's usual place of abode was at the plaintiff's before he went to Scotland, and to have the sheriff to leave the summons with the plaintiff's family, would be tantamount to no notice at all; and although it had for several years been his usual place of abode, yet the evidence is quite satisfactory, that he abandoned it when he left there for Scotland.

As to the remedy by attachment, we think the plaintiff was not bound to take upon himself this burthensome remedy, even if it did appear that Gillespie left property enough to satisfy the demand; to be sure, the action in attachment in this case would have, in form, been an action on the case, but the remedy is out of the common course of remedies; it is...