Merchants & Planters Nat. Bank of Sherman v. Appleyard

• Decision Date: 23 September 1953
• Docket Number: No. 739,739
• Citation: 238 N.C. 145,77 S.E.2d 783
• Court: North Carolina Supreme Court
• Parties: MERCHANTS & PLANTERS NAT. BANK OF SHERMAN v. APPLEYARD.

Page 783

77 S.E.2d 783

238 N.C. 145

MERCHANTS & PLANTERS NAT. BANK OF SHERMAN v. APPLEYARD.

No. 739

Supreme Court of North Carolina.

Sept. 23, 1953

Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, for plaintiff, appellee.

Deal, Hutchins & Minor, Winston-Salem, for defendant, appellant.

DENNY, Justice.

The note in question having been executed in the State of Texas, the substantive rights of the parties are subject to the lex loci. However, since the plaintiff has instituted an action in this jurisdiction for the enforcement of its substantive rights against the defendant, its remedial rights are governed by the lex fori. McIntosh, North Carolina Practice and Procedure, section 103, page 104; Restatement, Conflict of Laws, section 603 (1934); 53 C.J.S., Limitations of Actions, § 28, p. 972; Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. --- (decided 18 May, 1953); Sayer v. Henderson, 225 N.C. 642, 35 S.E.2d 875; Webb v. Webb, 222 N.C. 551, 23 S.E.2d 897; Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Smith v. Gordon, 204 N.C. 695, 169 S.E. 634; Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 68 A.L. R. 210; Vanderbilt v. Atlantic Coast Line R. R. Co., 188 N.C. 568, 125 S.E. 387, 52 A.L.R. 287; Patton v. W. M. Ritter Lbr. Co., 171 N.C. 837, 73 S.E. 167; Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212, 52 L.R.A. 201, 80 Am.St.Rep. 791; Haws to Use of Thompson v. Cragie, 49 N.C. 394. Therefore, it must be conceded that the plaintiff's cause of action is barred unless section 1-21 of our General Statutes is applicable. This statute in pertinent part reads as follows: 'If, when the cause of action accrues or judgment is rendered or docketed against a person, he is out of the State, action may be commenced, or judgment enforced, within the times herein limited, after the return of the person into this State, * * * the time of his absence shall not be a part of the time limited for the commencement of the action, or the enforcement of the judgment.'

The plaintiff is not now and never was a resident of the State of North Carolina. The defendant was a resident of North Carolina for approximately thirteen years before moving to the State of Texas in 1946. However, he was a nonresident of this State on December 6, 1947 when he executed and delivered the note in controversy to the plaintiff and remained so until December, 1951.

The defendant was a resident of the State of Texas when the note was executed and when it matured. Therefore, he was not a resident of North Carolina when the cause of action arose; and the fact that the defendant had formerly lived in this State has no bearing on the interpretation or construction to be placed on the above statute.

The crucial question to be determined is whether the above statute is applicable to causes of action that arise out of the State and between parties who were nonresidents of this State when such actions arose, or whether the statute is applicable only to causes of action that arise in this State in favor of creditors residing therein. It appears that this precise question has not been decided by this Court. In our decisions in which the statute has been construed and applied by this Court, the creditors, or at least some of them, were residents of the State at the time the respective obligations were created and the causes of action arose. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347; Alpha Mills v. Watertown Steam Engine Co., 116 N.C. 797, 21 S.E. 917; Lee v. McKoy, 118 N.C. 518, 24 S.E. 210; Williams v. Iron Belt Building & Loan Association, 131 N.C. 267, 42 S.E. 607; Love v. West, 169 N.C. 13, 84 S.E. 1048; Cuthbertson v. People's Bank, 170 N.C. 531, 87 S.E. 333; Hill v. Lindsay, 210 N.C. 694, 188 S.E. 406.

In Armfield v. Moore, supra [97 N.C. 34, 2 S.E. 349], the defendant executed a note under seal to the plaintiffs in the town of Monroe, in this State, and at the time of its execution, the maker thereof, the defendant, was a nonresident of this State and remained so thereafter. The plaintiffs instituted an action to recover on the note more than ten years after its maturity, and the Court held that the defendant being a nonresident of the State would not be permitted to take advantage of the ten-year statute of limitations which he pleaded, in view of the provisions of the Code, § 162 (now G.S. § 1-21). The Court, in considering the statute, said: 'The purpose is to prevent defendants from having the benefit of the lapse of time (the statute of limitation) while they permit debts against them past due to remain unpaid, or other causes of action against them to remain undischarged, and keep beyond the limits of the state and the jurisdiction of its courts, and thus prevent the person having the right to sue from doing so. It is not the policy or purpose of the state to drive its citizens directly or indirectly to seek their legal remedies abroad, or to encourage nonresidents to keep out of it, and beyond the jurisdiction of its courts, as would in some manner be the case if, by keeping out of the state, the debtor or person against whom a cause of action exists could avail himself of the lapse of time during his absence. The counsel for the appellant insisted in the argument that the statute under consideration does not embrace nonresidents of this state. We cannot so interpret it. The words 'any person,' employed to designate the person to be affected and embraced by it, are very comprehensive, and there is nothing in its scope or purpose that excludes them.'

We think it must be conceded that the statute under consideration was enacted for the primary purpose of tolling the statute of limitations in favor of the citizens and residents of this State whenever a cause of action arises in their favor, and the debtor, either resident or nonresident, is beyond the reach of process of our courts. Even so, this does not mean that our courts should not be open to a nonresident plaintiff to enforce a claim on a cause of action that is not barred in the jurisdiction where such cause of action arose, where the debtor has not been a resident of this State for the statutory time necessary to bar the action. Statutes like ours and those substantially and essentially in accord therewith, have been held to toll the statute in such cases where neither the plaintiff nor the defendant was a resident of the state of the forum at the time of the institution of the action and never was, as well as in those cases where the obligation arose out of the state of the forum and the debtor had not resided in the state of the forum for a time sufficient to bar the action by the lex fori. Steen v. Swadley, 126 Ala. 616, 28 So. 620; Western Coal & Mining Co. v. Hilvert, 63 Ariz. 171, 160 P.2d 331; McKee v. Dodd, 152 Cal. 637, 93 P. 854, 14 L.R.A.,N.S., 780, 125 Am.St.Rep. 82; Cvecich v. Giardino, 37 Cal.App.2d 394, 99 P.2d 573; Simon v. Wilnes, 97 Colo. 78, 47 P.2d 406; Newton v. Mann, 111 Colo. 76, 137 P.2d 776, 147 A.L.R. 767; Hatch v. Spofford, 24 Conn. 432; Jones v. Wells, 2 Houst. 209, 7 Del. 209; Van Deren v. Lory, 87 Fla. 422, 100 So. 794; West v. Theis, 15 Idaho 167, 96 P. 932, 17 L.R.A., N.S., 472, 128 Am.St.Rep. 58 (Idaho now has a provision in its statute, I.C. § 5-239 which prevents recovery on a claim in that State, if barred in the jurisdiction where the cause of action arose); Ross v. Rees, 55 Iowa 296, 7 N.W. 611; McNamara v. McAllister, 150 Iowa 243, 130 N.W. 26, 34 L.R. A.,N.S., 436, Ann.Cas.1912D,463; Bonifant v. Doniphan, 3 Kan. 26 (Kansas has amended its statute, G.S.1949, 60-310, so as not to toll the statute of limitations where the plaintiff and defendant were nonresidents of the State when the cause of action accrued and such cause of action is barred in the State where it arose, Bruner v. Martin, 76 Kan. 862, 93 P. 165, 14 L.R.A., N.S., 775, 123 Am.St.Rep. 172, 14 Ann. Cas. 39); Thompson v. Reed, 75 Me. 404; Frye v. Parker, 84 Me. 251, 24 A. 844; Mason v. Union Mills Paper Co., 81 Md. 446, 32 A. 311, 29 L.R.A. 273, 48 Am.St.Rep. 524; John v. John, 307 Mass. 514, 30 N.E.2d 542 (it is pointed out in this case that the statute, G.L. (Ter.Ed.) c. 260, § 9, contains a provision to the effect that an action cannot be maintained in Massachusetts on a cause of action arising out of the State, if such cause of action is barred in the State where it arose); Belden v. Blackman, 118 Mich. 448, 76 N.W. 979; Tagart v. Indiana, 15 Mo. 209 (statute in Missouri, V.A.M.S. § 516.200, has been changed so as to apply only to any debtor who is a resident of that State, Koppel v. Rowland, 319 Mo. 602, 4 S.W.2d 816); Hartley v. Crawford, 12 Neb. 471, 11 N.W. 729; Paine v. Drew, 44 N.H. 306; In re Goldsworthy's Estate, 45 N.M. 406, 115 P.2d 627, 148 A.L.R. 722; Ruggles v. keeler, 3 Johns., N.Y., 263, 3 Am.Dec. 482; Meyers v. Credit Lyonnais, 259 N.Y. 399, 182 N.E. 61, 83 A.L.R. 268 (this case expressly disapproves Garrison v. Newman, 222 App.Div. 498, 227 N.Y.S. 78, which held that where the creditor and debtor were nonresidents and the cause of action accrued outside the State of New York, that the exception to the statute, Civil Practice Act, § 13, did not apply); Bean v. Rumrill, 69 Okl. 300, 172 P. 452; Crocker v. Arey, 3 R.I. 178; McConnell v. Spicker, 15 S.D. 98, 87 N.W. 574; Raymond v. Barnard, 71 S.D. 630, 28 N. W.2d 700; Kempe v. Bader, 86 Tenn. 189, 6 S.W. 126 (overruling Barbour v. Erwin, 14 Tenn. 716, 721); Burnes v. Crane, 1 Utah 179. See Annotations 83 A.L.R. 271; 148 A.L.R. 732 and 17 A.L.R.2d 502.

In the recent case of Howle v. Twin States Express, Inc., 237 N.C. 667, 75 S.E.2d 732, Winborne, J., assembled our decisions to the effect that a nonresident has the right to bring an action in our courts as one of the privileges guaranteed the citizens of the several states by the Constitution of the United States, Article Iv, section 2. A nonresident is entitled to the benefit of statutory provisions such as those contained in...