McNamara v. McAllister

• Decision Date: 13 February 1911
• Citation: 150 Iowa 243,130 N.W. 26
• Parties: MCNAMARA v. MCALLISTER.
• Court: Iowa Supreme Court

150 Iowa 243

130 N.W. 26

MCNAMARA

v.MCALLISTER.

Supreme Court of Iowa.

Feb. 13, 1911.

Appeal from District Court, Woodbury County; W. M. Hutchinson, Judge.

Action for alienation of affections. The trial court overruled a demurrer to a part of defendant's answer and some motions to strike other parts, and, plaintiff electing to stand on the rulings, judgment was entered against him for costs. He appeals. Reversed.Alfred Pizey and R. R. Dickson, for appellant.

T. E. Gill and Strong & Whitney, for appellee.

DEEMER, C. J.

Plaintiff claims that defendant at Sioux City, Iowa, alienated his wife's affections from him. At the time the cause of action arose, and for many years prior thereto and down to the time of the rulings complained of, both plaintiff and defendant were citizens and residents of the state of Nebraska. The alleged alienation occurred January 8 to 29, 1907, inclusive. Defendant among other defenses pleaded the following:

“(2) This defendant admits that plaintiff and Mary E. McAllister were married in Sioux City, Iowa, and that several children were born to plaintiff and his wife; and defendant alleges that ever since on or about the 15th day of June, 1901, plaintiff and his wife and this defendant have been citizens and residents of the state of Nebraska, and that plaintiff and defendant are still citizens and residents of the state of Nebraska; that the cause of action if any plaintiff has, accrued more than two years prior to the commencement of this action, and is barred by the statute of limitations; * * * that after coming into the home of defendant, James J. McAllister, to live, the said wife, whose name was Mary E. McAllister, commenced an action in the district court of Dakota county, Nebraska, against the plaintiff herein for divorce on the ground of extreme cruelty, and in said action sought to recover alimony, and also to secure the care, custody, and control of said children; that the plaintiff herein was duly served with summons in said action, and appeared therein and tried said cause of action, and the court found the issues for the plaintiff in said action, Mary E. McAllister, and it was conclusively determined in said action that the plaintiff herein was guilty of extreme cruelty toward his wife, and was a vulgar and vicious man, and unfit to have the care and custody of said children, or any of them, and the court in said action awarded her alimony, no part of which has been paid, and awarded her the custody of said children; that since Mary E. McAllister and her children came to the home of defendant she has been entirely penniless; and that she has not been in good health, and had had no means of support, and this defendant, her father, has, as a matter of kindness and parental love only, provided clothing and food for the said Mary E. McAllister and her minor children. * * *

(4) That on or about the 11th day of January, 1909, plaintiff commenced an action in the district court of Dakota county, Nebraska, against this defendant and his wife, Julia McAllister, stating the same cause of action that is stated in his petition herein; that defendant filed an answer to the said alleged cause of action in Dakota county, Nebraska; that plaintiff well knew that he had no cause of action for the alienation of his wife's affections, and defendant alleges that plaintiff instituted said suits simply to harass and annoy the defendant, and that plaintiff's motive is simply that of malice, and for the purpose of making the defendant all the expense that plaintiff can, and not for the purpose of in good faith prosecuting his alleged cause of action.”

Plaintiff demurred to that part of the answer pleading the statute of limitations, and also moved to strike the other parts of the answer quoted. His demurrer and motion were each overruled, and the appeal is from these rulings. If that part of the answer pleading the statute of limitations is good, that is the end of the case. But if the ruling was erroneous, the case should be reversed. Wallace v. Ins. Co., 66 Iowa, 139, 23 N. W. 302. Such actions as these are ordinarily barred within two years. But plaintiff relies upon the following sections of the Code as saving his right of action. These are: Section 3451, reading as follows: “The time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation above described.” And section 3452, which reads: “When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter; but this section shall not apply to causes of action arising within this state.” Manifestly the later section has no application, for defendant does not plead that the action is barred by the statutes of another state. Even if he had, the statute would not be applicable, because it is conceded by both parties that the cause of action arose in this state. If the action is saved it is because of section 3451 of the Code. From no aspect of the case is plaintiff's residence controlling. As the action is purely transitory he had the right to go into any jurisdiction where he could secure proper service upon the defendant and there prosecute his action, unless barred by the statutes of that state. But defendant's residence is material for the reason that both sections 3451 and 3452 make it so. As already observed section 3452 must be eliminated from our discussion because of lack of an issue tendered by the pleadings making it so, and for the further reason that the cause of action arose in this state.

Turning again to section 3451, it will be observed that it provides that the time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation. Does this apply to a case where the defendant was a nonresident prior to the accrual of the cause of action and remained so until the demurrer to the answer pleading the statute of limitations was filed? This is the pivotal and only question bearing upon the matter now in hand. The proposition seems to be foreclosed by the decision in Ross v. Rees, 55 Iowa, 296, 7 N. W. 611. In that case defendants never resided in this state, and it was held that the statute of limitations did not run against plaintiff's claim which accrued in another state. See, also, Stern v. Selleck, 136 Iowa, 291, 111 N. W. 451;Davenport v. Allen (C. C.) 120 Fed. 175;Heaton v. Fryberger, 38 Iowa, 185;Wetmore v. Marsh, 81 Iowa, 677, 47 N. W. 1021. Somewhat in point is Lebrecht v. Wilcoxon, 40 Iowa, 93.

Defendant's counsel rely upon some decisions from other states to the effect that where a defendant is a nonresident when the cause of action accrues the exceptions as to nonresidents do not apply. These are: West v. Theis, 15 Idaho, 167, 96 Pac. 932, 17 L. R. A. (N. S.) 472, 128 Am. St. Rep. 58;Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172;Strong v. Lewis, 204 Ill. 35, 68 N. E. 556. We have examined these cases, and find that they are of no consequence. Construing statutes not at all similar to our own, they are of no value as precedents, and were this not true they would do no more than furnish reasons for changing our rule. For this purpose they are not persuasive. Our law is plain and unambiguous and contains no qualifications or limitations on a nonresident defendant, as in many other jurisdictions. Our view has support in Bennett v. Cook, 43 N. Y. 537, 3 Am. Rep. 727, opinion by Pecknam, J.; Frost v. Brisbin, 19 Wend. (N. Y.) 11, 32 Am. Dec. 423;Stewart v. Spaulding, 72 Cal. 264, 13 Pac. 661;Ambler v. Whipple, 139 Ill. 311, 28 N. E. 841, 32 Am. St. Rep. 202;Wood v. Bissell, 108 Ind. 229, 9 N. E. 425;Dwight v. Clarke, 7 Mass. 515;Jordon v. Secombe, 33 Minn. 220, 22 N. W. 383;Hartley v. Crawford, 12 Neb. 471, 11 N. W. 729;Burrows v. French, 34 S. C. 165, 13 S. E. 355, 27 Am. St. Rep. 811. A full discussion of the matter will be found in 19 Am. & Eng. Ency. of Law, pp. 228, 229, and 25 Cyc. pp. 1238, 1239.

In the latter work it is stated unequivocally that the great weight of authority sustains the proposition that an exception such as the one we are considering applies to residents and nonresidents alike. We have found three cases which are cited in support of the proposition that the exceptions do not apply where plaintiff himself is a nonresident. These are: Belden v. Blackman, 118 Mich. 448, 76 N. W. 979;Royse v. Turnbaugh, 117 Ind. 539, 20 N. E. 486; and Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588, 10 L. R. A. 613.

The Wheeler Case is not in point, as it contained a saving clause to the contestant of a will reading “persons absent from the state.” Speedy settlement of matters in probate was regarded as controlling in construing the words “persons absent from the state,” and it was held that it did not apply to nonresidents. The court recognized a conflict in the decisions, but in the interest of the speedy settlement of estates and legislative action following a decision in line with our view, the view was expressed that the statute as it then existed did not apply to nonresidents. In all cases relied upon to support the opinion the terms used were, “absent from the state,” and these were sometimes qualified by the words “after his or their return.” It was held in effect that one could not be absent from the state if he had never been there. This was in the face, however, of many authorities to the contrary, as Von Hemert v. Porter, 11 Metc. (Mass.) 210; Hall v. Little, 14 Mass. 203;Putnam v. Dike, 13 Gray (Mass.) 535;Paine v. Drew, 44 N. H. 306;...