Roberts v. Hudson, 5224

• Decision Date: 27 March 1930
• Docket Number: 5224
• Citation: 286 P. 364,49 Idaho 132
• Parties: J. E. ROBERTS, Trustee of ROGERSON DEPARTMENT STORE, a Defunct Corporation, Respondent, v. GEORGE HUDSON and MRS. GEORGE HUDSON, Appellants
• Court: Idaho Supreme Court

286 P. 364

49 Idaho 132

J. E. ROBERTS, Trustee of ROGERSON DEPARTMENT STORE, a Defunct Corporation, Respondent, v. GEORGE HUDSON and MRS. GEORGE HUDSON, Appellants

No. 5224

Supreme Court of Idaho

March 27, 1930

LIMITATION OF ACTIONS-TOLLING OF STATUTE OF LIMITATIONS-TEMPORARY ABSENCE FROM THE STATE-BILLS AND NOTES-EXECUTION-FAILURE TO DENY-HUSBAND AND WIFE-LIABILITY OF WIFE ON NOTE INDEBTEDNESS.

1. In action on note tried before court without jury it was within province of court to give such weight to testimony as he deemed it entitled to receive.

2. Under C. S., sec. 6622, where departure from state after accrual of cause of action is within exception providing that such absences shall not be computed, every absence sufficient to suspend running of limitations must be counted, and successive absences will be aggregated.

3. Statute of limitations runs in favor of debtor only while he is actually in state and is tolled as soon as he leaves state.

4. In suit on note, defendant's failure to deny execution thereof constitutes admission that note was executed.

5. In action on note against husband and wife, judgment against wife held improper, in absence of allegation or proof that debt evidenced thereby was contracted for benefit of her separate estate or for her own use and benefit.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. H. F. Ensign, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed in part and reversed in part.

Judgment against George Hudson affirmed and reversed and set aside as against Mrs. George Hudson. No costs awarded against Mrs. Hudson. Costs awarded against Mr. Hudson.

E. M Wolfe, for Appellants.

The important question is, Could personal service be made upon the defendants? (Anthes v. Anthes, 21 Idaho 305, 121 P. 553.)

Plaintiff must prove defendant personally absent from state, notwithstanding he be an admitted resident of another state. (Miller v. Baier, 67 Kan. 292, 72 P. 773.)

Bothwell & Chapman, for Respondent.

It is within the province of the jury, or the court when a jury has been waived, to believe or to disbelieve the testimony of any witness, or any portion of such testimony. (Baird v. Gibberd, 32 Idaho 796, 189 P. 56; Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.)

The absence of a debtor from the state tolls the statute of limitations for the period of such absence by virtue of the provisions of C. S., sec. 6622. (Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Simonton v. Simonton, 33 Idaho 255, 193 P. 386; MacLeod v. Stelle, 43 Idaho 64, 249 P. 254.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

Respondent brought suit September 7, 1927, on a promissory note due October 1, 1920, and as an excuse for the delay in bringing the suit, exceeding the statutory period, alleged that the appellants had been out of the state during most of the time since the maturity of the note. Appellants by their answer interposed the bar of the statute of limitations and denied such absence from the state as to toll the statute.

Appellants, husband and wife, assign as error the insufficiency of the evidence to show such absence from the state as to toll the statute of limitations, and also urge that the judgment should not have been against Mrs. Hudson, because the evidence did not show that the note was given by her for the benefit of her separate estate.

It was stipulated that the records in the office of A. L. Rinearson, U.S. Commissioner at Jarbridge, Nevada, showed in substance that appellant Hudson filed on a homestead in Nevada and proved up on the same, and in connection therewith made a sworn statement claiming continuous residence thereon from about February 20, 1920, to about February 18, 1925. This proof before the commissioner was supplemented by two witnesses in support of the entryman's application.

Both of the appellants were called for cross-examination under the statute and testified that they were not in Nevada all the time but were in Idaho a considerable portion of the period in dispute. Mrs. Hudson was explicit and definite as to dates and places.

Mr. Hudson explained the conflict between his testimony herein and his declarations before the U.S. Commissioner by saying the U.S. Commissioner was hard of hearing; that everything had to be written out for him and that the commissioner knew all about the homestead and Hudson's residence thereon. To give effect to Hudson's testimony that his statements in the proof before the commissioner were incorrect, would be to countenance fraud upon the government, certainly not to be encouraged.

"While impeachment evidence, consisting of statements of a witness made at another time or place, is not substantive proof of the truth of the facts so stated, it may have the effect of rendering nugatory the affirmative evidence given of a different state of facts." (Portland Cattle Loan Co. v. Gemmell, 41 Idaho 756 (757), 242 P. 798.)

There was affirmative evidence in the cross-examination of appellants and Mrs. Jones, witness for appellants, and the examination of one Pattnott, witness for respondents, as to appellants' residence in Nevada and out of this state, during the disputed period. It was the province of the court, no jury being called, to give such weight to the testimony as he deemed it entitled to receive. (Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.)

The majority rule is that where the departure from the state after the accrual of the cause of action is within the exception of the statutes providing that such absences shall not be computed, every absence which is sufficient to suspend the running of the statute of limitations will be counted and successive absences will be aggregated. (Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Simonton v. Simonton, 33 Idaho 255, 193 P....