Keith-O'Brien Co. v. Snyder

• Decision Date: 12 December 1917
• Docket Number: 3119
• Parties: KEITH-O'BRIEN Co. v. SNYDER
• Court: Utah Supreme Court

169 P. 954

51 Utah 227

KEITH-O'BRIEN Co. v. SNYDER

No. 3119

Supreme Court of Utah

December 12, 1917

Appeal from District Court of Salt Lake County, Third District; Hon Geo. F. Goodwin, Judge.

Action by the Keith O'Brien Company against W. F. Snyder.

From a judgment for plaintiff. Defendant appeals.

AFFIRMED.

W. I Snyder for appellant.

Chris Mathison for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff brought this action to recover judgment upon an open account for goods, wares, and merchandise sold and delivered to the defendant. The only defense is that the action is barred by virtue of our statute of limitations.

The court found the facts as follows:

"That on and between February 11, 1909, and September 4, 1909, at Salt Lake City, Utah, the plaintiff sold and delivered to the defendant, W. F. Snyder, at his request, goods, wares, and merchandise, for which said defendant promised to pay the plaintiff the sum of $ 308.27. That no part of the same has been paid. That on or about August 15, 1909, the defendant, W. F. Snyder, departed from the state of Utah, and was absent from the state for the ensuing six years, with the exception of the period between about September 1, 1911, and January 10, 1912."

As a conclusion of law the court found that the action was not barred, and that the plaintiff was entitled to judgment for the amount found due, which was entered accordingly, and the defendant appeals. He insists that the court erred in holding that the action was not barred. Comp. Laws 1907, section 2876, provides that:

Actions "on an open account for goods, wares, and merchandise * * * may be commenced at any time within four years after the last charge is made, or the last payment is received."

Section 2888 reads:

"If when the cause of action accrues against a person he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of the action accrues he depart from the state, the time of his absence is not part of the time limited for the commencement of the action."

This action was commenced August 1, 1916. According to the facts as found by the court we assume that the last item was purchased on September 4, 1909. The action would thus not be barred until September 4, 1913. The court found that the defendant departed from the state and was absent therefrom from about August 15, 1909, for six years, less four months and ten days, or that he was absent five years, seven months, and twenty days. If, therefore, the cause of action accrued on September 4, 1909, and the action was commenced August 1, 1916, there were six years, ten months, and twenty-seven days, or nearly seven years, between the time the cause of action accrued and the time it was commenced. If, however, we subtract the time the defendant was out of and absent from the state from the six years, ten months, and twenty-seven days, then the statute had only run one year, three months, and seven days. It is however, conceded that the defendant's family, consisting of his wife and minor children, continued to live in this state during all of the time that the defendant was out of the state and absent therefrom. It is contended that under our statute (Comp. Laws 1907, section 2948, subd. 8) an action could have been commenced against the defendant at any time by serving process on defendant's wife at the family residence or place of abode. The question, what effect shall be given to the provisions of section 2888, supra, is therefore squarely presented.

Defendant's counsel contends that the provisions of that section apply only to cases where neither the debtor nor his family have a place of abode or residence within the state so that process cannot be served, and that where, as in this case, process can be served at the place of abode of his family, and thus an action can be commenced at any time, the running of the statute is not arrested by reason of the defendant's absence from the state. In support of his contention counsel cites and relies on the following cases: Penley v. Waterhouse, 1 Iowa 498; Collester v. Hailey, 6 Gray 517; Dent v. Jones, 50 Miss. 265; Quarles v. Bickford, 64 N.H. 425, 13 A. 642; Rutland Marble Co. v. Bliss, 57 Vt. 23; Blodgett v. Utley, 4 Neb. 25; Omaha, F. L. & T. Co. v. Parker, 33 Neb. 775, 51 N.W. 139, 29 Am. St. Rep. 506; Sage v. Hawley, 16 Conn. 106, 41 Am. Dec. 128; Palmer v. Shaw, 16 Cal. 93; Whitton v. Wass, 109 Mass. 40. In view that the question is presented for the first time to this court we shall briefly refer to the foregoing cases and the statutes on which they are based.

The cases cited from Iowa, Nebraska, Connecticut, and California are all based on statutes which, in legal effect, are like our section 2888, supra, which we have quoted in full. Notwithstanding the language of those statutes, however, it was held in those cases that mere absence from the state in case the debtor could be served with process within the state would not arrest the running of the statute of limitations. The cases cited from Massachusetts, Mississippi, New Hampshire, and Vermont are, however, based upon statutes that are quite different from ours. In Massachusetts the statute is arrested only in case the debtor is "absent from and resides out of the state." That is, the running of the statute is not arrested unless the debtor has lost his domicile in the state. Gen. St. Mass. 1860, ch. 155, section 9. The subsequent statutes of Massachusetts are to the same effect. The statute of Mississippi (Rev. Code Miss. 1871, section 2157), and of New Hampshire (Gen. St. c. 202, section 8, Pub. St. of N. H. 1891, c. 217, section 8), and Rev. L. Vt. 1880, section 970, are precisely the same as the statute of Massachusetts, and the decisions from these states are to the same effect as the Massachusetts decisions. After the decision in Penley v. Waterhouse, supra, the statute of Iowa was amended so as to read "the time during which a defendant is a nonresident of the state shall not be included in computing" the time, etc. Code Iowa 1873, section 2533. See Weaver v. Carpenter, 42 Iowa 343; Hedges v. Jones, 63 Iowa 573, 19 N.W. 675. Under all of the foregoing statutes, therefore, nonresidence of as well as absence from the state is necessary to toll the running of the statute. The Nebraska cases are based on the case of Sage v. Hawley, 16 Conn. 106, 41 Am. Dec. 128. In a subsequent case decided by the Supreme Court of Errors of Connecticut, namely, Hatch v. Spofford, 24 Conn. 432, it is squarely held that the time a debtor is out of or absent from the state must be excluded from the computation of time. In the Hatch Case, although decided twelve years after Sage v. Hawley, supra, was decided, no mention is made of the latter. The case in 16 Cal. 93, to which reference has been made, as we shall see hereafter, has not been followed by the Supreme Court of California. The only cases, therefore, that support appellant's contention, under a statute like ours, are the case in 1 Iowa and the two from Nebraska. Upon the other hand there are a large number of cases emanating from states where a statute like ours is in force in which it is held that the full time that the debtor is out of the state and absent therefrom must be excluded in computing the time, and that such is the case notwithstanding the fact that the debtor's family may have a residence or place of abode in the state, and that service of process could be made upon some member of the debtor's family at its residence or place of abode. The cases in which the decisions are to that effect are: Fisher v. Phelps, Dodge & Co., 21 Tex. 551; Phillips v. Holman, 26 Tex. 276; Pells v. Snell, 130 Ill. 379, 23 N.E. 117; Hoggett v. Emerson, 8 Kan. 262; Investment Co. v. Bergthold, 60 Kan. 813, 58 P. 469; Gibson v. Simmons, 77 Kan. 461, 94 P. 1013; Bauserman v. Blunt, 147 U.S. 647, 37 L.Ed. 316, 13 S.Ct. 466, 147 U.S. 647, 13 S.Ct. 466, 37 L.Ed. 316; Todman v. Purdy, 5 Nev. 238; Bonnifield v. Price, 1 Wyo. 223; Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Stanley v. Stanley, 47 Ohio St. 225, 24 N.E. 493; Kempe v. Bader, 86 Tenn. 189, 6 S.W. 126; Huss v. Central, etc., Co., 66 Ala. 472; Parker v. Kelly, 61 Wis. 552, 21 N.W. 539; Smith v. Smith (D. C.) 210 F. 947; Rogers v. Hatch, 44 Cal. 280; Watt v. Wright, 66 Cal. 202, 5 P. 91; Foster v. Butler, 164 Cal. 623, 130 P. 6.

Our statute is an exact transcript from the California statute, and in the case of Rogers v. Hatch, supra, the rule applicable to the facts in the case at bar is stated in the following words:

"If, when the cause of action here accrues, the person against whom the same exists resides in the state, and he afterwards departs from the state, his successive absences from the state must be aggregated together and deducted from the whole time which has elapsed since the cause of action accrued, and the...