Moore v. Hendrick

• Decision Date: 01 January 1852
• Parties: MOORE v. HENDRICK, ADM'R.
• Court: Texas Supreme Court

8 Tex. 253

MOORE

v.HENDRICK, ADM'R.

Supreme Court of Texas.

1852.

The 22d section of the act of limitations of 1841 (Hart. Dig., art. 2395) does not prevent the statute from running against a cause of action where the debtor has never been in the country at the time of the accruing of the cause of action.

Error from Harrison. Suit commenced November 20th, 1845, on two notes made in Alabama, one falling due June 2d, 1839, the other January 2d, 1841. Plea of the statute of limitations, amendment of the petition, alleging that the defendant removed to Texas in 1844, and had not at any time previous thereto been within the limits of the same. There was a judgment for the defendant, and the only question was whether the statute ran against the cause of action before the removal of the defendant to this State.

W. P. Hill, for plaintiff in error.

C. M. Adams and J. R. Mahone, for defendant in error.

HEMPHILL, CH. J.

This action was brought on two notes of hand, one of which became due on the second day of June, 1839, and the other reached maturity on the second day of January, 1841. The petition was filed on the 20th November, 1845. There is an accumulated mass of pleadings, demurrers, replications, amendments, exceptions, &c., in this case which require no particular notice. The statute of limitations was pleaded, and the plea being sustained, verdict by consent was entered as on the finding of the jury. The only point in dispute is whether the claim against the deceased intestate was, by virtue of the 22d section of the act of limitations, exempted from the general operation of the statute during the time which elapsed between the maturity of the notes and the emigration of the deceased to the Republic in the spring of 1844. If the statute commenced to run from the time at which the notes respectively became due, then the action was barred; but if the statute was suspended until the date of the defendant's removal to the country, then the bar had not been completed and the action could be maintained. By the 22d section (art. 2395) it is declared that if any person against whom there is or shall be cause of action is or shall be without the limits of this Republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the Republic, and the time of...