Parker v. Kelly

• Decision Date: 25 November 1884
• Citation: 21 N.W. 539,61 Wis. 552
• Parties: PARKER v. KELLY.
• Court: Wisconsin Supreme Court

61 Wis. 552

21 N.W. 539

PARKER

v.KELLY.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Racine county.

Fish & Dodge, for respondent.

Edwin White Moore, for appellant.

ORTON, J.

The note became due while the defendant, who was the master of a vessel, was absent from the state on his business, and he remained so absent nearly two years, while his family during that time resided in the city of Racine, in this state; and he was so temporarily absent, intending to return to his family and the said place of his residence when not so employed out of the state. From the time of his return to this state six years had not elapsed when this suit was brought. The main and important question is, had the statute of limitations run against the note? This must depend almost solely on the construction of our own statute, for there is, perhaps, no case outside of this state where the precise language of our own statute has been considered. The statute (section 4231, Rev. St.) is: “If, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms respectively limited (six years) after such person shall return to or remove to this state.” The language of the statutes of Massachusetts and New York is substantially like that of our own statute, with the exception of the words “or remove to,” and this very difference may make the New York and Massachusetts authorities govern this court as to the construction of a statute evidently borrowed from those states, if it should appear that the words “or remove to” were inserted in our statute in order to make it verbally conform to the construction placed upon the statute with these words out of it by the courts of those states.

The set-off in the case of Ruggles v. Keeler, 3 Johns. 263, accrued when both the parties resided and were personally out of the state of New York, and six years had not run after the party charged therewith “returned to” (or removedto) the state. Chancellor KENT, in that case, said: “But a proviso in the statute of Anne, and which we have adopted in our act of limitations, saves the operation of the statute if the party shall be ‘out of the state’ at the time the cause of action arises against him, and the statute does not begin to run until ‘after the return’ of the defendant. Whether the defendant be a resident of this state and only absent for a time, or whether he resides altogether out of the state, is immaterial. He is equally within the proviso.” He then cites decisions on English statutes which construe the word “return” to embrace Englishmen temporarily absent, and foreigners who reside always abroad and come into England.

The language in the Massachusetts statute, “until his return within the state,” was construed to embrace as well persons who had never previously been within the commonwealth, as those who were residents therein, and were temporarily absent, and return. Milton v. Babson, 6 Allen, 322. Chief Justice BIGELOW admits that the language is equivocal and doubtful, but construes it, under the rule, verba intentioni, debent inservire, as intended to embrace non-residents, although the word “return” is inapt as to them. Such, we understand, has always been the construction of this statute in those states, and the supreme court of the territory, in 1842, cited the cases of those states to sustain a similar construction of our own statute in Brown v. Bicknell, 1 Pin. 226. The revisers, in order to make the statute read as it has so been construed, and supply the defect, inserted the words “or remove to,” so as to clearly embrace non-residents. See Revised Notes. By this amendment all chance or right to place any other construction upon this part of the section than the language itself clearly imports, are foreclosed. Whether the full or partial remedies of the law are or are not suspended by a resident of this state being temporarily out of the state, cannot be considered in giving effect to this plain and unambiguous language; for it is evident, from the above authorities and the amendment, that they were not considered by the legislature. The case is directly and clearly within the statute, for the defendant resided in this state, was out of it when the cause of action accrued, and returned into it some two years thereafter. While so out of the state the statute did not run against the note.

The late case of Whitcomb v. Keator, 59 Wis. 609, S. C. 18 N. W. REP. 469, is cited by the learned counsel of the appellant as being in conflict with this construction of the first clause of the section. But it clearly is not. In that case the defendant was a resident and in the...