Nichols v. Vaughan

• Decision Date: 21 May 1914
• Citation: 105 N.E. 376,217 Mass. 548
• Parties: NICHOLS et al. BACON v. VAUGHAN. BACON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 548

105 N.E. 376

NICHOLS et al. BACON v. VAUGHAN. BACON v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1914

COUNSEL

Samuel M. Child, of Boston, for plaintiffs.

Jos. B Warner, of Boston, for defendant.

OPINION

RUGG C.J.

The question presented by these cases is whether the statute of limitations has run in favor of the defendant's testator. All the causes of action accrued at least as early as August 1886. For many years prior to this time and confessedly up to August, 1889, he was domiciled in Boston. He left there with his wife in August, 1889, having shortly before that date retired from business. He gave up his apartment in Boston and stored his furniture before August, 1889, and thereafter was absent from the commonwealth continuously until June, 1906 traveling most of the time until 1896, when an apartment was leased in Paris where he lived chiefly until his return to America. He was resident in this commonwealth after these causes of action accrued for three years before leaving Boston and two years after returning there in 1906. Hence the defendant is entitled to prevail, provided it is found that the statute was running in his testator's favor for the first or any one of the years of his absence. The finding of the superior court judge that the statute had run in favor of the defendant involved a finding that the domicile of his testator was in Boston for at least one year out of the period of his absence.

Plainly there was evidence which warranted such a finding. This is not seriously controverted by the plaintiffs. Their main contention is that the ruling of law was wrong, which the judge made, to the effect that 'change of domicile alone suspends the expiry of the statute of limitations.' They urge that the statute of limitations runs only during such period of time as personal service of civil process issuing from our courts could have been made within this jurisdiction upon the defendant's testator. The material words of the statute, R. L. c. 202, § 9, are that if, after a cause of action like those at bar has accrued, 'the person against whom it has accrued resides out of the commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action.' This language is the same as that of Pub. St. c. 197, § 11, except that the words 'is absent from and' before the word 'resides' have been stricken out. The words of the statute have been construed in several decisions. It was said by Chief Justice Morton in Slocum v. Riley, 145 Mass. 370, at page 371, 14 N.E. 174, at page 176: 'In computing the period of limitation, the time of the debtor's absence from the state is not to be excluded, unless it is of such a character as to work a change of his domicile.' The same point was decided in Collester v. Hailey, 6 Gray, 517. The slight change in the phrase of the statute above noted made in the Revised Laws from the Public Statutes, if of any effect, tends rather to strengthen than to weaken the force of this decision. The matter was discussed more at length in Langdon v. Doud, 6 Allen, 423, where at page 425 (83 Am. Dec. 641) it was said by Chief Justice Bigelow: 'So long as a debtor has a last and usual place of abode in the commonwealth, that is, while he retains his domicile or residence here, the courts of the state have jurisdiction over him, and due service of legal process can be made upon him. A creditor can at any time commence a suit to enforce a claim against a debtor domiciled within the state. A writ can be served by leaving a summons at his last and usual place of abode, and in the case of his absence from the state actual notice * * * can be given to him, so that a valid and binding judgment can be obtained.'

The defendant contends that these decisions are no longer law because of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed 565, wherein it was held that there could be no personal judgment against a nonresident defendant over whom jurisdiction was obtained solely by attachment of property. That case does not go to the extent of holding that the courts of the state in which one is domiciled and to which he owes allegiance cannot acquire jurisdiction over him so as to be able to render a judgment in personam except after personal service of process upon him within the state. There are, however, expressions in several decisions of that court which lend support to that view. ...