Lewis v. Hyams

• Court: Nevada Supreme Court
• Writing for the Court: MASSEY, C.J.
• Citation: Lewis v. Hyams, 26 Nev. 68, 64 P. 817 (Nev. 1901)
• Decision Date: 02 May 1901
• Parties: LEWIS v. HYAMS.

64 P. 817

26 Nev. 68

LEWIS v. HYAMS.

Supreme Court of Nevada

May 2, 1901

On petition for rehearing. Petition denied.

For former opinion, see 63 P. 126.

MASSEY C.J.

The petition for a rehearing herein involves the same question passed upon by the court relating to the construction of our statute of limitations. We have given the matter an exhaustive and careful re-examination, and are unable to reach a conclusion different from the one announced. The question must be determined by the construction to be placed upon the words, "when a cause of action has arisen," used in section 33 of our statute of limitations. Comp. Laws, § 3736. The state of Illinois has a statute in substance, and almost in language, similar to our section 33. The supreme court of that state, in construing the precise words "when a cause of action has arisen," found in the section of their statute, gave to them the meaning we have placed upon them, as used in our statute. In the case of Hyman v. McVeigh, reported in 10 Chi. Leg. N. 157, the court of that state say that "the words, 'when a cause of action has arisen,' as they occur in the statute pleaded should be construed as meaning when jurisdiction exists in the courts of a state to adjudicate between the parties upon the particular cause of action, if properly invoked; or, in other words, when the plaintiff has the right to sue the defendant in the courts of the state upon the particular cause of action, without regard to the place where the cause of action had its origin." The same construction was placed upon the words by that court in the case of Hyman v. Bayne, 83 Ill. 256, and is cited by the court in Hyman v. McVeigh, as authority for the doctrine. This construction was subsequently adopted by the appellate court of that state in Humphrey v. Cole, 14 Bradw. 56; and while the same court in Story v. Thompson, 36 Ill.App. 370, disapproves of Humphrey v. Cole, it bases its disapproval upon the application of the statute to the facts of the case when construed with the provisions of section 18 of their statute. This is manifest from the language used by the court in Story v. Thompson. It does not attempt to disapprove of Hyman v. Bayne and Hyman v. McVeigh, but makes a distinction between those cases and the case of Humphrey v Cole. In making the distinction the court say (speaking of Hyman v. Bayne and Hyman v. McVeigh): "Both the maker of the note and the payee resided outside the state of Illinois when the cause of action accrued, and till after the bar in the other state was established. The expressions of the supreme court in that case, and quoted in 14 Ill., supra were made with reference to the facts in that case, but have no application here. The decision in Humphrey v. Cole, supra, must have been made under a mistaken idea of what was really decided in Hyman v. McVeigh, 87 Ill. 708."

It will also be noted that the case from which we have quoted turned upon the rights of a resident creditor under another provision of the statute. As late as 1892, in the case of Wooley v. Yarnell, 142...