Reybold v. Parker

• Decision Date: 27 June 1887
• Citation: Reybold v. Parker, 32 A. 981, 12 Del. 526 (Ct. of Err. and App. of Del. 1887)
• Parties: ANTHONY REYBOLD v. GEORGE A. PARKER, et al
• Court: Court of Errors and Appeals of Delaware

32 A. 981

12 Del. 526

ANTHONY REYBOLD v. GEORGE A. PARKER, et al

Court of Errors and Appeals of Delaware

June 27, 1887

ERROR to the Superior Court, New Castle County.

This was an ^[*] action of assumpsit in the Superior Court for New Castle county, to the November Term, 1875, at the suit of Anthony Reybold v. George A. Parker, Samuel M Felton, Samuel Harlan, Jr., and Jesse Lane.The summons was issued November 9, 1875, and was returned "Summoned personally, November 22, 1875."All of the said defendants appeared by their attorneys.

The amended declaration, filed August 1, 1882, suggests that since the issuing of the summons in this cause the said defendant Lane had died, and complains against the surviving defendants, Parker, Felton and Harlan.The declaration contains only the common counts, and is upon joint promises by the original four defendants.

The said surviving defendants plead non assumpsit, payment set-off, and act of limitations.Issue was joined on all of said pleas except the fourth--the statute of limitations--as to which the plaintiff filed a special replication in substance as follows: That the causes of action in the declaration mentioned accrued against the said (surviving)defendants and the said Lane, now deceased, jointly; that the said defendant, Parker, before and at the time when the causes of action in the declaration mentioned accrued, was out of this State, and that he afterwards, to wit, on January 1, 1875, came into this State, which said coming was his first coming into this State after the accruing of said causes of action in such manner that by reasonable diligence he could have been served with process--and that the plaintiff commenced his said action against the said defendants within three years after the said Parker's said coming into this State.

To this replication the defendants demurred, assigning the following causes of demurrer:

"1.That the said replication sets forth that one only of the said co-defendants was absent and out of the State at and before the accruing of the said causes of action to the said plaintiff, which fact, if true, would not bring the plaintiff in the case within the saving of the statute of limitations in such case made and provided.

"2.That the said replication and the facts therein stated only relate to one of the said co-defendants, and state no sufficient reason why the statute of limitations has not barred the said action as to the other defendants.

"And also that the said replication is in other respects uncertain, informal, and insufficient, etc."

Thereupon the plaintiff filed his joinder in demurrer.

On September 24, 1883, the plaintiff suggested upon the record the death of the said defendant Harlan, and that he prosecutes his said action against the said Parker and Felton, the surviving defendants.

On the same day, after hearing, judgment on the said demurrer was rendered against the said plaintiff as follows: That the said replication of the plaintiff and the matters therein contained are not sufficient in law for the said plaintiff to have and maintain his aforesaid action against the said defendants, etc.

For the reversal of said judgment this writ of error was taken by the plaintiff, against the said surviving defendants, Parker and Felton.

The plaintiff filed the following Assignments of Error and prayer for reversal.

"1.That the Court below erred in deciding that the replication of the plaintiff, stated in the record to have been pleaded to the fourth plea of the defendants and the matters therein contained, were not sufficient, for the said plaintff to have and maintain his said action thereof against the said defendants, and that, therefore, the said plaintiff should take nothing by his writ; whereas on the contrary thereof this plaintiff insists that the said replication and matters therein contained were sufficient in law in that behalf, and that the judgment of the Court below should have been for the plaintiff.

"2.That the Court below erred in sustaining the demurrer of the defendants to the replication of the plaintiff to the said fourth plea of the defendants, and in rendering judgment thereon for the defendants, whereas this plaintiff insists that the said demurrer of the defendants should have been overruled, and that judgment thereon should have been rendered for the plaintiff.

"3.That the judgment of the Court below on the said demurrer should have been for the plaintiff and not for the defendants.Wherefore the said plaintiff prays that the judgment of the Court below may be reversed."

Judgment reversed.

Edward G. Bradford and Nathaniel B. Smithers, for the plaintiff.

The question is whether, in a suit against several joint debtors where more than the statutory period of limitation has elapsed between the accruing of the cause of action and the bringing of suit, but where one of such debtors was out of the State when the cause of action accrued, and did not come into the State until within the statutory period next before the bringing of suit, the plaintiff, notwithstanding a joint plea of the statute, is not entitled to recover judgment against all the debtors sued.

Its proper solution depends upon the construction to be given to our statute in that behalf

"No action of assumpsit * * * shall be brought after the expiration of three years from the accruing of the cause of such action."--Del. Rev. Code, 728, Sec. 6.

"If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into the State, in such manner that, by reasonable diligence, he may be served with process."--Del. Rev. Code, 730, Sec. 14.

Upon due consideration, it will be found:

(1) That the express terms of the statute support the position of the plaintiff.

(2) That the reason of the case is on his side.

(3.)That the authorities are overwhelmingly in his favor.

The statute provides that "if at the time when a cause of action accrues against any person, he shall be out of the State, THE ACTION may be commenced," etc.

A cause of action that accrues against several persons jointly accrues against each of them.

A cause of action that has accrued against A and B, can with perfect legal propriety be said to have accrued against B.

If a plaintiff in an action on a promissory note declare against A, B and C, and at the trial produce a note executed by only A and B, he will be nonsuited.

But, if a plaintiff, in a similar action, declare against A and B and at the trial produce a note executed by A, B and C, he will be entitled to recover.

In the first case, the plaintiff will fail, because there is a variance; which is "a disagreement in some particular point or point or points between the allegation and the evidence."

Stephen on Pl.* 85.

In the latter case the plaintiff will succeed, because there is no disagreement between the allegation and the evidence.

Hence, in case of a misjoinder of partiesdefendant, the plaintiff will fail at the trial or on demurrer.

1 Chitty on Pl.* 44.

But, in case of a non joinder of partiesdefendant, a plea in abatement must be interposed, or the plaintiff will recover.

1 Chitty on Pl.* 46;Andrews v. Allen, et. al., 4 Harr., 452;Barry v. Foyles, 1 Pet.* 311;Wright v. Hunter,1 East. 20;Rees v. Abbott, Cowper, 832; Mountstephen v. Brooke, 1 B. & Ald*., 224;Richards v. Heather, 1 B. & Ald.,* 29;Rice v. Shute, 5 Burrow,2611, 2 Wm. Blackst, 695;Abbott v. Smith, 2 Wm. Blackst,* 947;Cabell v. Vaughn, 1 Wm. Saunders, 291.

A suit against several joint debtors, one of whom has come into the State within the statutory period next before suit brought is embraced within the saving of the statute, when its express terms are considered in their proper legal sense.

The statutory saving, construed literally and sensibly, prevents the running of the statute in favor of any of several joint debtors, so long as one of them, who was out of the State, when the cause of accrued remains out of the State.

The statute provides that, within the statutory period after his coming into the State, "THE ACTION may be commenced."

The statute, at least in terms, nowhere limits the plaintiff to an action against the joint debtor so coming into the State.

The statute gives the plaintiff the right to commence THE ACTION.

Now, the cause of action, in the case discussed, is against all the debtors jointly.

When, therefore, the statute provides that "the action may be commenced," its language clearly points to the commencement of an action against all the debtors jointly.

Otherwise, without any words to warrant it, the word action as first occurring would possess a different significance from that of the same word as subsequently occurring in the same clause of the same sentence.

There is only one cause of action mentioned in the section; there is only one action mentioned there.

But it is only reasonable that courts of justice, in dealing with such a law, should, in a legitimate mode, gather its general intention and controlling purpose, and presume that the legislature intended that the law, in its application to special cases, which may not actually have been present to the mind of the legislature at the time of its enactment, should, so far as its language will fairly permit, be so construed as to carry into effect and not defeat, such intention and purpose.

The general intention and controlling purpose of the statutory saving in question was that the plaintiff should not be barred by the statutory limitation, where, owing to absence from the State on the other side, he cannot have the benefit and the full benefit of his action.

The...