Howard v. Blair
| Decision Date | 04 March 1919 |
| Docket Number | (No. 3634.) |
| Citation | 98 S.E. 435 |
| Parties | HOWARD. v. BLAIR et al. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Marion County.
Bill by John A. Howard, receiver, etc., against Marie Antoinette Blair, W. D. Bryan, administrator of W. J. Bryan, deceased, and others, with garnishment against the Fairmont Coal Company. Demurrer to bill by W. D. Bryan, administrator, sustained, and bill dismissed, and plaintiff appeals. Decree affirmed.
McCamic & Clarke and J. M. Ritz, all of Wheeling, for appellant.
W. S. Meredith, of Fairmont, for appellees.
MILLER, P. The decree to which the present appeal relates, pronounced on March 12, 1918, sustained the demurrer of the de fendant W. D. Bryan, administrator of the estate of W. J. Bryan, deceased, and, the plaintiff declining to amend, dismissed his bill. The other defendants, except the Fairmont Coal Company, garnishee in the attachment sued out in the cause, namely Marie Antoinette Blair, John Blair, her husband, S. W. Loller, Cecelia Bryan, A. E. Fox and S. A. Engiehard, not served with process and not appearing, are all alleged to be non-residents of the state, and it is alleged that W. J. Bryan in his life time and before and after the accrual of the cause of action sued on was also a non-resident of the state of West Virgina.
The object of the suit, begun July 7, 1916, was to recover of the defendant W. D. Bryan, appointed by the circuit court of Harrison county, West Virginia, administrator of the estate of W. J. Bryan, deceased; first, the sum of $5,000, upon a promissory negotiable note for that sum, dated August 10, 1903, payable on or before April 10, 1904, to the order of the defendant E. A. Fox, and by him endorsed without recourse to the defendant S. A. Engiehard, and by the latter also endorsed, and of which note the bill alleges the First Citizens' Bank, a corporation, of which hank plaintiff was appointed special receiver, became the bona fide holder in due course for a valuable consideration before maturity, amounting with interest at the date of the suit as per affidavit filed, to $8,875.00; second, to set aside as being fraudulent and void as to said debt a certain deed made by the said W. J. Bryan and wife to their daughter Lizzie B. Loller, now deceased, dated April 3, 1903, purporting to convey to the grantee therein a certain tract of land situated in Marion county, West Virginia, and then under lease for coal to the defendant Fairmont Coal Company, garnishee!, attached in the cause, and subject to said lease, and to sell said land to pay said debt, interest and costs, and also to have applied any money in the hands of said garnishee to the satisfaction of the debt as decreed, and for general relief.
The demurrer was a general one, and no specific grounds were assigned therefor in the court below. Here two grounds are urged in support of the decree, namely, the statute of limitations and laches or staleness of the demand.
On the first ground, the statute of limitations of ten years, it fully appears on the face of the bill and exhibits that right of action on the note sued on matured on April 10, 1904, and that the present suit was not begun until July 7, 1916, more than twelve years after the right of action accrued to plaintiff, or to the bank of which he is special receiver, so that unless upon some ground sufficient to defeat the operation of the statute or bring the case within the ex-ception thereto, the action was clearly barred and the bill was properly dismissed.
The exception in section 18, chapter 104 of the Code (sec. 4431), 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, or if such right has been or shall be hereafter obstructed by war, insurrection or rebellion, 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."
To bring this case within that exception the bill alleges that although the maker of the note was at the time he executed it a resident of the state of Pennsylvania and had not before or since been a resident of this state, he was personally present in the state, where and when he executed the note and where by its terms it was to be paid, and that by immediately departing from the state and remaining away continuously thereafter he thereby obstructed the prosecution of plaintiff's right against him within the true meaning and intent of the statute.
For this proposition plaintiff takes cover under some early decisions of this court, namely, Hefflebower v. Detrick, 27 W. Va. 16; Pugh v. Cameron's Adm'r, 11 W. Va. 523; Abell v. Penn Mut. Life Ins. Co., 18 W. Va. 400; and also the early Virginia case of Wilkinson v. Holloway, 7 Leigh, 277. The fourth point of the syllabus of Hefflebower v. Detrick is:
"If a person residing in another state, makes his note in this state, and thereafter departs from, and continues to reside out of this state, he will be considered as a person, 'who before the action accrued resided in this state, ' and who by his departure from it, and his residence out of it, has obstructed the payee in the prosecution of his right of action on such note during such absence from this state."
That the statute clearly contemplates that the defendant should have at some time before the cause of action originated or accrued resided in West Virginia seems too plain for controversy. The very words of the statute "who had before resided in this state, " and "by departing without the same" read in juxtaposition as they should be, leave no possible room for doubt or quibble as to their meaning. They are plain words, not technical, and should be construed according to their natural and usual acceptation. This was the view of Dr. Minor, of the statute of Virginia, substantially the same as ours. IV Minor, pt. 1 (3d Ed.) 622. The Hefflebower-Detrick Case was disposed of on a demurrer to the evidence, and we think Judge Woods, who wrote the opinion, intended no violence to the language of the statute, but put his decision on the presumption for lack of evidence to the contrary, that the place of residence of the defendant at the time of making the note was where the note was actually executed and where by its terms the contract was to be performed, for he cites and reviews numerous decisions on the subject, and at page 28 says respecting the sufficiency of the evidence to overcome this presumption, "he, " the defendant, "never, so far as this record shows, pretended * * * that at the time, " the time of the making of the note, "he did not reside in this state." We think the point of the decision should be interpreted in the light of the facts and presumptions from the evidence, so strongly emphasized in the opinion. The case of Abell v. Penn Mut. Life Ins. Co., supra, involved the status of the defendant, a foreign corporation. It was decided that for the purpose of that action its place of residence was in this state, where at the time of the contract it had qualified to do business and had and maintained an...
To continue reading
Request your trial