Lillard v. Lierley

• Citation: 202 S.W. 1057,200 Mo.App. 140
• Parties: J. W. LILLARD, Administrator of the Estate of M. L. SPAULDING, Defendant in Error, v. WILSON LIERLEY, Plaintiff in Error
• Decision Date: 20 April 1918
• Court: Court of Appeal of Missouri (US)

202 S.W. 1057

200 Mo.App. 140

J. W. LILLARD, Administrator of the Estate of M. L. SPAULDING, Defendant in Error, v. WILSON LIERLEY, Plaintiff in Error

Court of Appeals of Missouri, Springfield

April 20, 1918

Appeal from Greene Circuit Court.--Hon. Arch A. Johnson, Judge.

AFFIRMED AND REMANDED (with directions.)

Cause remanded.

A. C Kice and Watson & Page for plaintiff in error.

J. S Clarke for defendant in error.

FARRINGTON J. Sturgis, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

I. The defendant sued out a writ of error in this court complaining of the action of the trial court in rendering a judgment against him in a suit brought on a promissory note. The petition is as follows: (Formal parts omitted.)

"Plaintiff says that he is the legally appointed and now acting administrator of the estate of M. L. Spaulding, deceased, and as such administrator has the legal care and control of the assets of said estate.

"Plaintiff for his cause of action against the defendant states that the defendant, for value received, on the 27th day of January 1909, promised to pay the said M. L. Spaulding six months after date the sum of $ 286.90, with interest from date at the rate of ten per cent perannum, and if the interest is not paid when due to become as principal and bear the same rate of interest.

"The said note nor any part thereof has not been paid and the same together with all accrued interest is now due and owing said plaintiff as such administrator, said note herewith filed and made part of this petition.

"Wherefore plaintiff prays judgment for said sum of $ 286.90 with accrued interest and cost of this suit."

The note is as follows:

"286.90 Wallace, Neb., 1/27, 1909.

"Six months after date, for value received, I, or we, jointly of severally, promise to pay to M. L. Spaulding, or order, two hundred eighty-six dollars and ninety cents, at the Citizens Security Bank, Wallace, Nebraska, with interest at the rate of per annum from until paid. Interest payable annually, and defaulting interest to draw the same rate of interest as principal. The makers, sureties, endorsers and guarantors of this note hereby severally waive presentment for payment, notice of non-payment, protest and notice of protest and diligence in bringing suit against any party hereto and consent that time of payment may be extended without notice thereof.

"WILSON LIERLEY."

Defendant in his answer made the following plea:

"Further answering, defendant states that under Sections 6575 and 6580 of the Compiled Statutes of the State of Nebraska actions upon a promise in writing must be commenced within five years from the time the cause of action accrues, and more than five years had elapsed from the accruing of this cause of action and the filing of this suit.

"Wherefore said cause of action is barred under the Statutes of Limitation of said State of Nebraska, the place wherein said promise in writing upon which this cause of action is based was executed, and defendant herein asks to be discharged with his costs."

It appears from the record and briefs filed in this court that the cause was tried on the evidence adduced at the trial but that for the purpose of this appeal the parties stipulated to submit the case here on an agreed statement of facts, which we now set forth:

"It is hereby agreed between plaintiff and defendant in this cause that the debt for which the note in suit was brought was contracted in the State of Nebraska, and that the note in suit was executed, signed and delivered by the payor to the payee in the State of Nebraska, and at the date of the execution and delivery of the note the defendant lived in the State of Nebraska and plaintiff lived in the State of Missouri, and shortly after the note in question matured and the right of action accrued, the defendant moved to the State of Missouri and remained in this State until this suit was filed.

"And it is further agreed that more than five years elapsed from the date when the right of action accrued on the note until the holder and payee died, and that more than five years elapsed from the date the cause of action accrued until this suit was filed.

"It is further agreed that at the date this suit was filed the defendant lived in the State of Missouri, and that the payee and holder of the note died in Missouri, and that his administrator took out letters of administration in this State.

"It is further agreed and understood that under the statutes of the State of Nebraska a cause of action is barred by limitation of five years on promissory notes after the cause of action accrues."

In the course of this opinion we will refer to the parties as plaintiff and defendant, just as the cause stood in the trial court, and not as plaintiff in error and defendant in error.

The plaintiff stated in oral argument that in the agreed statement of facts there was omitted by mistake and oversight the fact that section 6590, or subsection 20, of the chapter on "Time of Commencing Civil Actions" Compiled Statutes of Nebraska 1911, and asks that we consider that section in determining the cause. It reads as follows:

"If, when a cause of action accrues against a person, he be out of the State, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the State, or while he is absconded or concealed; and if after the cause of action accrues he depart from the State, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

Defendant refused to agree that we consider section 6590, above quoted, and we must therefore take the case as it comes to us in the regular way and cast our decision upon the petition, answer and agreed statement of facts, which will allow that we consider the evidence, the law of Nebraska as set out in section 6575, subsection 5, Compiled Statutes of Nebraska 1911, which is as follows:

"Civil actions can only be commenced within the time prescribed in this title, after the cause of action shall have accrued," and section 6580, subsection 10, Id., which is as follows:

"Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment."

We are asked by the defendant to consider what the Supreme Court of Nebraska has held with reference to the Statute of Limitations in that State, but the decision cited in the brief is not shown to have been introduced in evidence. Under repeated holdings in this State we cannot take judicial notice of the decisions of a sister State; such decisions must be pleaded and proven in each case. [Otto v. Pryor, Mo.App. , 193 S.W. 28; Sterling v. Parker-Washington Co., 185 Mo.App. 192, 170 S.W. 1156; Gibson v. Railroad, 225 Mo. 473, 483, 125 S.W. 453; Snuffer v. Karr, 197 Mo. 182, 94 S.W. 983.]

This case must therefore be decided on the record that is before us and the law that is applicable to the facts contained in such record.

The record discloses that were this case to be decided by the Statutes of Limitation in force in Missouri the cause of action would not have been barred because ten years is fixed as the term within which action must be brought. However, section 1896, Revised Statutes 1909, provides that if this action is barred in Nebraska, the place of making and performing the contract, it will be barred here. [Coryell v. Railway Co. (Mo.), 201 S.W. 77; Frizell G. & S. Co. v. Railway Co. (Mo.), 201 S.W. 78 McCoy v. Railway, 134 Mo.App. 622, 114 S.W. 1124.]

The two sections of the Nebraska statutes introduced in evidence and the stipulation of facts clearly show that such cause of action was barred in Nebraska if not brought within five years after the same accrued. Therefore, in the absence of any other showing, this cause being barred in Nebraska would consequently be barred here. There is, however, this showing in the agreed statement of facts: "Shortly after the note in question matured and the right of action accrued the defendant moved to the State of Missouri and remained in this State until this suit was filed." This is a solemn admission that the defendant "left the realm" or left the jurisdiction of the courts of Nebraska before the five years had expired. The plaintiff did not have the five years given him by the statutes of Nebraska within which he could sue the defendant on the Nebraska contract after it had matured. What effect this had on the running of the statute in Nebraska is not shown in evidence. Therefore the plaintiff has asked us to consider section 6590, hereinbefore quoted, which would stop the operation of the five year limitation, but this, as before shown, cannot be done because it is a law of a sister State neither pleaded nor proven. The proposition then presented is: What is the law by which this condition is governed?

Nebraska was never an English possession, and therefore unlike that part of the United States which was at one time a possession of Great Britain or a part of the original thirteen colonies we cannot presume that the common law was in force; and at this place we may say that the common law of England in the fourth year of the reign of James the First did not have a statute providing for the abatement of the Statute of Limitations in cases where defendant was without the realm of England or beyond the four seas which meant beyond the jurisdiction of the English courts. The first statute which was passed seems to have been in the twenty-first year of James the First, and a statute applying to the absence of the defendant in the fourth and fifth of Anne, chapter 16 [See 17 R. C. L. p. 833, secs. 194, 195; 2...