Johnson v. Smith

• Decision Date: 31 March 1869
• Citation: 43 Mo. 499
• Parties: JOHN B. JOHNSON, Respondent, v. JULIUS H. SMITH, Appellant.
• Court: Missouri Supreme Court

43 Mo. 499

JOHN B. JOHNSON, Respondent,

v.JULIUS H. SMITH, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

George P. Doan, for appellant.

I. The statute commenced to run at the date of the last item of the account. Plaintiff should have commenced his suit within five years from that date; otherwise he is barred. When the statute commences to run, it does not stop. (Peck v. Randall, 1 Johns. 164; Trout v. Smith, 20 Johns. 33; Fowler v. Hart, 10 Johns. 463; Fitzhugh v. Anderson, 2 H. & M., Va., 289; Wilcox v. Plummer, 4 Pet. 172; Landes v. Perkins, 12 Mo. 238; Smith v. Newby, 13 Mo. 159; Ingraham v. Bowie, 4 Miss. 17; 2 Pars. on Cont., ed. of 1855, p. 370.)

II. The statute begins to run when plaintiff could have brought his action, whether he knew it or not. (2 Pars. on Cont., ed. of 1855, p. 372.)

III. The question of residence is almost entirely one of intention. (1 Kent's Com., 9th ed., p. 86; Sto. Confl. Laws, ch. 3.) Temporary absence does not constitute residence elsewhere. (Collester v. Hailey, 6 Gray, 517; Ingraham v. Bowie, 4 Miss. 17; Jennison v. Hapgood, 10 Pick. 77; Drew v. Drew, 37 Me. 389; Bucknam v. Thompson, 38 Me. 171; Am. Law Register, July, 1868, p. 545; Garth v. Robards, 20 Mo. 523; Green et al. v. Beckwith, 38 Mo. 384.)E. T. Allen, for respondent.

I. The first instruction asked by defendant was objectionable and properly refused. It is immaterial whether service could or could not have been made within five years after the date of the last item in the account. (Cook's Ex'r v. Holmes et al., 29 Mo. 63; Burroughs v. Bloomer, 5 Denio, 532; Ford v. Babcock, 2 Sandf. 578; Didier v. Davison, 2 Barb. Ch. 477; Brown v. Rollins, 44 N. H. 446.)

II. The second instruction asked by defendant was objectionable and properly refused. An intention to remain in one place for some indefinite time is sufficient to make that place the party's domicile. (44 N. H. 383.) This instruction might have been objectionable if the section in question had read “the time during which he has a domicile abroad,” instead of “the time of his absence.” It cannot be held that the words “depart from and reside out of” and the word “absence” imply a greater degree of actual or intentional permanency of habitation than the word “domicile.”

CURRIER, Judge, delivered the opinion of the court.

The plaintiff commenced this suit in October, 1867, on account of several items, the last of which was dated June, 1861. To the defendant's answer setting up the statute of limitations as a bar, the plaintiff replies, alleging that the defendant, after the debt accrued and before the suit was brought, “departed from and resided out of this State” for a period of time exceeding two years. Whether he did so or not was the fact in issue.

At the trial the defendant asked the court to instruct the jury that if they believed from the evidence that the “plaintiff could have had service with process in a writ at any time after the date of the last item in the account, and within five years from the said date, and did not so bring his suit, plaintiff is barred.”

This is clearly not the law, and the court was right in refusing the instruction. The statute (Gen. Stat. 1865, p. 747, § 16) provides that if the debtor “departs from” and has his “residence out of this State” after the cause of an action accrues, the “time of his absence shall not be deemed or taken as any part of the time limited” for the commencement of suit. This exception is in the interest of creditors, and practically extends the period of limitation by the period of the debtor's absence. It modifies the doctrine, which constitutes the ground-work of the instruction, that the statute of limitations, when once in motion, runs on without interruption. As a mere temporary absence does not stop the running of the statute (20 Mo. 523), so a mere temporary return or “flying visits,” after the residence is changed, will not stop the running of the exception. (29 Mo. 61.)

The court was also asked to instruct the jury, in behalf of the defendant, that the words “depart from and reside out of the State,” as employed in the statute under consideration, mean a “departure with intent to change permanently the residence of the party.” This was also refused. This point has been discussed as though the words “domicile” and “residence” meant the same thing, which is a mistake. A man may have his “...