Harrison v. Union Nat. Bank

• Decision Date: 04 April 1882
• Citation: 11 N.W. 752,12 Neb. 499
• Parties: THOMAS H. HARRISON, PLAINTIFF IN ERROR, v. THE UNION NATIONAL BANK OF LEWISBURG, PENNSYLVANIA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 752

12 Neb. 499

THOMAS H. HARRISON, PLAINTIFF IN ERROR, v. THE UNION NATIONAL BANK OF LEWISBURG, PENNSYLVANIA, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 4, 1882

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

Colby & Hazlett, and Charles O. Bates, for plaintiff in error.

The note being barred on its face, burden of proof is upon the plaintiff to show the specific exceptions, which he alleges in his petition, in order to take the case out of the statute. Funk v. McVay, 21 La. Ann., 192, 267, 273 276, and 501. Prigman v. East Tenn. R. R. Co., 1 Lea (Tenn.), 204. Spurger v. Hardy, 4 Mo. App., 573

The plaintiff simply proved that the defendant resided in Wisconsin when the cause of action accrued, and did not commence to reside in Nebraska until 1875. This is not sufficient to take the case out of the statute. Angell on Limitations, section 208. Hoggett v. Emerson, 8 Kan 262. Faw v. Roberdeau, 3 Cranch., 174. Palmer v. Shaw, 16 Cal. 95. Plaintiff should have proven, not only that the defendant was out of the state at the time the cause of action accrued, but also that he did not come into the state so that service of process could have been had upon him, and the debtor thereby enabled to reduce his claim to a personal judgment, until within five years prior to the commencement of the action. A construction of this exception of the statute can only be such an absence from the state as entirely suspends the power of the plaintiff to commence his action. 7 Waits' Actions and Defenses, 273. Blodgett v. Utley, 4 Neb. 29. Sage v. Hawley, 16 Conn. 105. Randall v. Wilkins, 4 Denio, 579.

J. H. Broady and A. Hardy, for defendant in error, cited Blodgett v. Utley, 4 Neb. 25. Seymour v. Street, 5 Neb. 85. Edgerton v. Wachter, 9 Neb. 500.

OPINION

MAXWELL, J.

This is an action upon a promissory note, of which the following is a copy:

"$ 759.81. JANESVILLE, WIS., May 8th, 1872. Six months after date, I promise to pay to the order of James S. Marsh & Co., at the First National Bank of Janesville, Wis. seven hundred and fifty-nine dollars and eighty-one cents, value received, with interest at the rate of ten per cent. from date, until paid.

T. H. HARRISON."

After the note became due, it was transferred to the defendant in error, who brought an action thereon against the maker in the district court of Gage county, in January, 1878. The defense is the statute of limitations.

Sec. 20, of the code of civil procedure, provides that: "If, when a cause of action accrues against a person he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

The testimony shows that Harrison, at the...