Reid v. Hamilton

• Decision Date: 27 February 1892
• Citation: 18 S.W. 770,92 Ky. 619
• Parties: Reid v. Hamilton et al.
• Court: Kentucky Court of Appeals

18 S.W. 770

92 Ky. 619

Reid v. Hamilton et al.

Court of Appeals of Kentucky.

February 27, 1892

Appeal from circuit court, Montgomery county.

"Not to be officially reported."

Action by Elizabeth J. Reid against J. R. Rogers and A. W. Hamilton respectively principal and surety, on two notes. Hamilton alone answered, and judgment was rendered in his favor. Plaintiff appeals. Affirmed.

Lewis J.

December 7, 1874, J. R. Rogers, as principal, and appellee A. H Hamilton, his surety, executed a promissory note to appellant, E. J. Reid, for $1,291.33, payable two years after date, and bearing interest at the rate of 10 per cent. per annum until paid. On the same day the same parties, as principal and surety, executed a note to D. Hibbler for the same amount and due at the same time as the other, and, like it, bearing 10 per cent. interest. April 20, 1885, Hibbler in writing, assigned the latter note to appellant, whereby she became owner of both; and November 10, 1884, she instituted this action to recover judgment for the aggregate amount of the two notes, and interest from date, but at the rate of only 6 per cent. per annum from 1878, when it is alleged there was an agreement it should be thereafter so computed. J. R. Rogers does not appear to have made any defense to the action; but appellee pleaded and relied for his defense upon section 4, art. 6, c. 71, Gen. St., which provides, in substance, that a surety in a contract such as the notes sued on shall be discharged from all liability thereon when seven years shall have elapsed without suit thereon after the cause of action accrued. As more than seven years have elapsed after December 7, 1878, when the two notes became due before November 10, 1884, when this action was commenced, it is obvious appellant was, as adjudged by the lower court, discharged from all liability thereon, unless some one of the grounds relied on for avoiding operation of the section referred to be available.

1. It is contended that, as appellant was a married woman, when her cause of action accrued the statute of limitation, pleaded by appellee, did not begin to run against her until the death of her husband and removal of disability of coverture, April 15, 1884, being qualified and restricted by section 2, art. 4, same chapter, which provides as follows: "If a person entitled to bring any of the actions mentioned in the third article of this chapter *** was at the time the cause of action accrued an infant, married woman, or of unsound mind, the action may be brought within the like number of years after the removal of such disability *** that is allowed to a person having no such impediment to bring the same after the right accrued." It seems to us very clear that the purpose of this section was simply to prolong in favor of persons under disability the several periods prescribed by the preceding third article, within which the different classes of civil actions therein designated shall be commenced; and the saving or exception was not intended to apply at all to the distinct and subsequent provisions of article 6, for benefit of sureties, which are themselves exceptional.

2. Whether the next ground relied on is available depends upon the proper construction and application of section 5, art. 6, which provides, in substance, that "if such surety shall abscond, conceal himself, or, by removing from the state or otherwise, obstruct or hinder his being sued, the time of such obstruction shall not be computed as part of the time of limitation, seven years."

It is not contended appellant absconded, concealed himself, or removed from the state; and the main question is whether he obstructed or hindered his being sued, which must be decided upon the facts proved, about which there seems to be no controversy. It appears that October 23, 1883, Judge Richard Reid, husband of appellant, prepared a new note for $3,088,...