Keagy v. Wellington Nat'l Bank

• Decision Date: 18 July 1902
• Citation: 12 Okla. 33,69 P. 811,1902 OK 58
• Parties: M. B. KEAGY v. THE WELLINGTON NATIONAL BANK
• Court: Oklahoma Supreme Court

1902 OK 58

69 P. 811

12 Okla. 33

M. B. KEAGY v. THE WELLINGTON NATIONAL BANK

Supreme Court of Oklahoma

Decided: July 18, 1902

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.

Syllabus

¶0 1. CONTRACT--Exempt From Liability-- Evidence. In an action against a resident of the Territory, to recover upon a contract executed outside the Territory, and at a time when the defendant was a non-resident of the Territory, the plaintiff is not required to plead or prove facts showing that the obligation is not barred by the laws of the state where the defendant formerly resided. Such question is a matter of defense, and unless the defendant pleads and proves the law of the foreign jurisdiction, and the concomitant facts necessary to bring his case within our statute of limitations, the courts can afford him no exemption from liability.

2. LIMITATIONS--Statute of. The statute of limitations will not begin to run against a cause of action until the case is brought under the operation of the statute, and where the cause of action arose in another state, the statute of limitations does not begin to run against it until the debtor becomes a resident of the Territory.

3.SAME--Statute of--Presumption. Where a note was executed in the state of Kansas, and the suit brought to recover on such note in this Territory, and the statutes of limitation of Kansas are neither pleaded or proven, this court will presume that the laws of that state are the same as the laws of Oklahoma.

4.JUDGMENT--Not Res Judicata, When. Where two persons are sued as co-defendants and answer separately, and not by way of cross petition, or make default, the judgment of the court adjudicating the rights of the plaintiff as against such defendants, will not be res judicata as to any of the merely relative rights as between the defendants themselves.

James Lawrence and Levi Ferguson, for plaintiff in error.

W. C. Tetirick and D. S. Rose, for defendant in error.

BURFORD, C. J.:

¶1 This is an action brought in the district court of Kay county in this territory by the Wellington National bank of Wellington, Kansas, on the 14th day of June, A. D., 1898, against M. B. Keagy, the plaintiff in error, to recover upon a note made by Keagy to the bank on January 14, 1889, for the sum of $ 1,200, payable thirty days after date, with ten per cent interest from maturity.

¶2 The plaintiff to take the case out of the statute of limitations, pleaded payments of interest; also that Keagy, before the expiration of five years after the maturity of the note, became a non-resident of Kansas, and became a resident of this territory, and that at the time of the commencement of this action he had not resided in this territory five years.

¶3 Keagy, the defendant below, joined issue by filing an unverified answer denying the alleged payments of interest, and also a general denial, and admitted the execution of the note. He also pleaded that the matter was res judicata. A trial was had by the court without the intervention of a jury, and resulted in a judgment in favor of the bank and against Keagy; for the amount, of the principal and unpaid interest, and the defendant below brings the case here for review.

¶4 It is argued by counsel for plaintiff in error that the note sued on was a contract between residents of the state of Kansas, and the bank's right of action was barred by the laws of that state, and hence by our statute at the time of bringing this suit. And they base this contention on the alleged failure of proof to show that Keagy had been "absent" from the state of Kansas. The plaintiff in error is in no position to present this question. The note sued on was dated January 14, 1889, and was due thirty days after date. If no payments had been made, the five years' limitation would not have expired until February 14, 1894. The proof showed that Keagy removed from Kansas in September, 1893, and took up his residence in Kay county, Oklahoma, and continued in live there until the time of the trial. When it was shown that he left Kansas and came to Oklahoma to live, and did live there continuously, the presumption would arise that he was absent from Kansas during all of that period. (Keith v. Steller, 25 Kan. 100.)

¶5 There was no obligation resting on the plaintiff below either to plead or prove that his cause of action was not barred by the state of Kansas. The note showed on its face that it was executed in the state of Kansas, and the plaintiff alleged in its petition that the defendant, Keagy, had not been a resident of Oklahoma for a period of five years prior to the commencement of its action. This court cannot take judicial notice of the laws of Kansas. The question as to whether the cause of action on the note was barred by the statute of limitations either of Kansas or of Oklahoma was one of fact, and there being nothing on the face of the petition to show that the cause of action was barred, it became a matter of defense, and devolved upon the defendant to plead the laws of the state of Kansas, and such a state of facts as would show that the right in recover upon the note had been barred, and then prove both the law and the facts. This question was expressly decided by this court in Richardson v. Mackay, 4 Okla. 328, 46 P....