John Shillito Co. v. Richardson

• Decision Date: 16 October 1897
• Citation: 102 Ky. 51,42 S.W. 847
• Parties: JOHN SHILLITO CO. v. RICHARDSON.
• Court: Kentucky Court of Appeals

42 S.W. 847

102 Ky. 51

JOHN SHILLITO CO. v. RICHARDSON.

Court of Appeals of Kentucky.

October 16, 1897

Appeal from circuit court, Mason county.

"To be officially reported."

Action by the John Shillito Company against W. H. Richardson to enforce the collection of a claim. Judgment dismissing petition, and plaintiff appeals. Reversed.

A. E Cole & Son, for appellant.

W. G Chapman, Warning Order Atty., for appellee.

GUFFY J.

The appellant instituted suit in the Mason circuit court, seeking to enforce the collection of a claim of $313.23 against the appellee, W. H. Richardson. It seems that the debt sued on was created in 1878. It also appears that appellee Richardson, was a nonresident of Kentucky; but he filed an answer, and pleaded and relied upon the statute of limitation of this state as a bar to appellant's claim. The appellant, in its reply, alleged that it and its assignor and the appellee were all citizens of the state of Ohio at the time of the creation and the accruing of its cause of action and that within less than two years after the cause of action accrued the appellee left the state of Ohio, and became a citizen of New York, and ever since has been continuously absent from the state of Ohio, and all the time, up to the filing of this suit, has remained a citizen of New York, and that, by the statute law of the state of Ohio, appellant's claim was not barred, and that appellee was not entitled to plead and rely upon the statute of limitation of Kentucky in bar of the claim sued on. The pleadings fully present the law of Ohio, as well as all other facts necessary to show that, if appellee had been sued in the state of Ohio, be could not have successfully pleaded the statute of limitation, and also showed that he never had been at any time a resident of the state of Kentucky. The court below sustained a demurrer to the reply as amended, and, appellant failing to plead further, its petition was dismissed; and to reverse that judgment this appeal is prosecuted.

The sole question presented for decision is whether the statute of limitation of Kentucky is a good plea in bar of the action, or whether it must be governed by the laws of Ohio where the cause of action accrued. Section 2542 of the Kentucky Statutes, which is the same as section 19, art. 4, c. 71, of the General Statutes, reads as follows: "When a cause of action has arisen in another state or country between residents of such state or country or between them and residents of another state or country, and by the laws of the state or country where the cause of action accrued an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state." It would seem from the foregoing that, if the action was not barred in such case by the statute of the state in which the cause of action accrued, it would not be barred in a controversy between the same parties in the courts of this state; and such seems to have been the opinion of the superior court of Kentucky, as announced in Labatt v. Smith, 4 Ky. Law Rep. 358. It seems that the ...