Nelson v. Beveridge

• Decision Date: 31 March 1855
• Citation: 21 Mo. 22
• Parties: NELSON, Appellant, v. BEVERIDGE, Respondent.
• Court: Missouri Supreme Court

21 Mo. 22

NELSON, Appellant,

v.BEVERIDGE, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. Under the 8th section of the 3d article of the statute of limitations of 1845, it is not necessary that the acts there specified should be done by the debtor before the cause of action accrues, to prevent the statute from running. If done at any time within the period allowed for the commencement of the action, the result is, that the debtor loses the benefit of the time which had previously run, as well as of that during the continuance of the acts which prevent the commencement of an action.

Appeal from St. Louis Law Commissioner's Court.

Action commenced in February, 1854, on a note dated September 23, 1841, payable one day after date. The defendant relied upon the statute of limitation. At the trial, there was evidence tending to show that the defendant suddenly removed from St. Louis, where he had previously resided, in the fall of 1841, and that it was not known to his neighbors where he had gone to. On the other hand, there was evidence tending to show that his removal was open, that he went to Palmyra, in this state, and that it was generally known among the neighbors where he was going, and that one of them received letters from him after he left. The court instructed the jury that the case was governed by the statute of 1835, and not of 1845; and that the statute having once begun to run, the subsequent absence of the defendant did not suspend its operation, and that it was a complete bar to the plaintiff's recovery.

M. L. Gray, for appellant.

Knox & Kellogg, for respondent.LEONARD, Judge, delivered the opinion of the court.

The note sued upon was given 23d of September, 1841, payable one day after date, and the maker, it is alleged, subsequently in October of the same year, absented himself so as to bring himself within the 8th section of the 3d article of the present revised statutes of limitations, corresponding with the 8th section of the same statute in the revised code of 1835. The court below holding that the case was regulated by the act of 1835, (the cause of action having accrued before the passage of the present statute,) decided that the statute, having commenced running before the obstruction existed, continued, not withstanding the subsequent occurrence of it. We think otherwise, and suppose that the case is governed by the act of 1845, as that statute contains no provision similar to the provision in the 7th section of the third article of the act of 1835. This is immaterial, however, in the present case, as the clause upon which the present question arises is to be found in both acts.

The rule that when the statute commences running, it is not interrupted by the occurrence of a subsequent disability, has nothing to do with a case of this character. The statute of limitation, after providing that actions shall be brought within the times limited for that purpose, provides that, if the party be a minor or a married woman, or insane, or imprisoned, at the time the cause of action accrues, he shall be allowed the same time to sue in, after the removal of the disability; and in the construction of this clause, the courts hold, according to the letter of the law, that the disability must exist at the time the cause of action accrues, and that, if the right of action has accrued, and the statute begun to run, the occurrence of a...