Rhodes v. Farish

• Citation: 16 Mo.App. 430
• Parties: E. RHODES, Appellant, v. E. T. FARISH, Administrator, Respondent.
• Decision Date: 10 February 1885
• Court: Court of Appeal of Missouri (US)

16 Mo.App. 430

E. RHODES, Appellant,

v.E. T. FARISH, Administrator, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed with directions.

MCENTIRE & LOEVY, for the appellant: The debtor need not abandon his domicile, but it is sufficient if he is beyond the reach of service of ordinary process, the statute is thereby interrupted.-- Johnson v. Smith, 43 Mo. 499; Venuci v. Cademartori, 59 Mo. 352; Garth v. Robards, 20 Mo. 524; Miller v. Tyler, 61 Mo. 402.

E. T. FARISH, pro se.

THOMPSON, J., delivered the opinion of the court.

On the 9th of December, 1882, the plaintiff exhibited for allowance against the estate of Wharton T. LaBaume, deceased, the following due bill:--

“Due Emerson Rhodes, three hundred and seventy-five gold, which I promise to pay on the first day of November, eighteen hundred and seventy-one.

W. T. LABAUME.

June 13, 1871.”

The evidence shows, without contradiction, that the signature to this due bill was that of the deceased. It is admitted that when it became due the premium on gold was eleven and seven-eighths per cent.

The only defence was the statute of limitations. It will be perceived that the time which intervened between the 1st of November, 1871, when the due bill became due, until the 9th of December, 1882, when it was exhibited for allowance to the administrator of LaBaume, deducting one month and thirteen days which elapsed between the death of LaBaume and the grant of the letters of administration, was ten years, eleven months, and twenty-six days. To take the case out of the statute of limitations, the plaintiff, by depositions and the oral testimony of witnesses, endeavored to show such a state of facts as would bring the case within three exceptions of the statute of limitations, as follows: 1. The exception contained in the first clause of section 3236, Revised Statutes, relating to cases where the defendant, being a resident of this state, is absent therefrom at the time when the cause of action accrues. 2. That contained in the second clause of the same section, which provides that “if after such cause of action shall have accrued, such person depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” 3. That contained in section 3244, relating to cases where the defendant absconds, conceals himself, or does other improper acts, which prevent the commencement of the action. We think we may lay out of view the first and last of these grounds of exception, because we are clear that, upon the second ground, the case, upon the undisputed evidence, is not within the statute of limitations.

In determining whether a case is within the exception created by this clause, it is necessary to bear in mind the purpose of the statute, which was that the plaintiff should not lose his right of action by the bar of the statute of limitations, if, during any substantial period of the time during which the statute otherwise would have been running, the defendant had departed from, or resided out of, the state, so that ordinary legal process, such as would afford a foundation for a personal judgment against the defendant, could not be served upon him. Venuci v. Cademartori, 59 Mo. 352; Garth v. Robards, 20 Mo. 524. In order to determine whether a given case falls within this exception of the statute, it is therefore necessary to read the statute in connection with section 3489, which relates to the manner of serving ordinary process on defendants in civil actions; and, in inquiries of this kind, the supreme court has so read it. The third clause of section 3489 enacts that “a summons shall be executed, except as otherwise provided by law * * * by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years.” When, therefore, the defendant had become temporarily a non-resident of Missouri, had even engaged temporarily in business in another state for several months, but left behind him in this state a dwelling-house, in which his family, consisting of a wife and several children lived during his absence, and had other real property in this state, the supreme court had no difficulty in holding that the case was not within the exception of the statute, because the plaintiff's writ, under the law, could have been served at his place of residence in this state, so as to warrant a general judgment against him. Garth v. Robards, 20 Mo. 524. So, where the defendant, having a family in this state and owning real property here, conveyed such property to a trustee for his wife, and then went to Italy, leaving his wife and family at his former residence here, and remained in Italy for eleven years, after which period he returned, it was held that the case was not within this exception of the statute, but that the statute continued to run in his favor; because a service of a summons, such as would have have supported a general judgment against him, could have been made at his residence here. Venuci v. Cademartori, 59 Mo. 352. On the other hand, where the defendant left his home in Greene County, in this state, in 1862, and was absent from the state until 1865, and his family, immediately after he had left the state, removed from the farm on which they had resided at the time when he left them, and went to the house of a relative in Lawrence County, and remained there until 1864, and then removed to Saline County and remained there until 1865, and then returned with the defendant to Greene County,--it was held that the statute ceased to run during the defendant's absence from the state; because, although his absence was temporary, yet, under the rule in Tiller v. Abernathy (37 Mo. 196), after the removal of his family from their residence in Greene County, he had not until his return any “usual place of abode” within this state, where ordinary legal process could be served upon him. Miller v. Tyler, 61 Mo. 401. These decisions show clearly the meaning of the statute, and give point to what the supreme court said in another case, that “the residence” spoken of in the statute, is not synonymous with the word “domicile.” “A man may have his ‘domicile’ in St. Louis and have a right to vote at elections, etc., and at the same time reside in Europe; and this European residence may be prolonged for years without affecting his St. Louis domicile. So a debtor may depart from and reside out of the state, within the meaning of the statute, without abandoning his domicile in Missouri. But the debtor's intentions, which enter so largely into the question as to domicile, are of no benefit to the creditor, so long as the debtor keeps out of the reach of process, and thus avoids a personal judgment against himself. Nor is it conceded that the question of intention is very material. It is the fact of absence beyond the reach of process for a substantial period of time, and for a purpose not transient in its character, that is important. Johnson...