Robin v. Ely & Walker Dry Goods Co., 8874.

• Decision Date: 31 January 1940
• Docket Number: No. 8874.,8874.
• Citation: 137 S.W.2d 164
• Parties: ROBIN v. ELY & WALKER DRY GOODS CO.
• Court: Texas Court of Appeals

137 S.W.2d 164

ROBIN v. ELY & WALKER DRY GOODS CO.

No. 8874.

Court of Civil Appeals of Texas. Austin.

January 31, 1940.

Rehearing Denied February 28, 1940.

Appeal from District Court, Tom Green County; John F. Sutton, Judge.

Action by the Ely & Walker Dry Goods Company against Max Robin on a sworn account. From a judgment for plaintiff, defendant appeals.

Affirmed.

Collins, Jackson & Snodgrass, of San Angelo, for appellant.

Robert T. Neill, of San Angelo, for appellee.

BLAIR, Justice.

Appellee, Ely & Walker Dry Goods Company, a Missouri corporation, sued appellant, Max Robin, upon a sworn account for $6,169.12, with legal interest from September 22, 1935, being the balance due on goods, wares and merchandise sold him during the months of June, July and August, 1935. Appellant plead the two year statute of limitation (Art. 5526), in bar of the cause of action. Appellee replied that appellant was without the limits of the state from about October 25, 1936, to about June 25, 1937, during which time the statute of limitation did not run under the terms of Art. 5537, which reads as follows: "If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person's absence shall not be accounted or taken as a part of the time limited by any provision of this title."

Appellant replied that it is true that he was without the limits of the State between said dates, but that said fact did not toll the running of the statute of limitation, because his absence was wholly involuntary and was due to the fact that he had been convicted of violating the United States penal laws relating to the concealment of property by a bankrupt, and as punishment was sentenced to serve one year and one day in the federal prison at El Reno, Oklahoma; and that the federal marshal under a proper commitment bodily transferred him from Texas to El Reno, Oklahoma, without his consent and in pursuance of the sentence of the federal court. Appellant alleged that the judge trying and convicting him could have sentenced him to serve said sentence within the limits of the State of Texas, and that to deny him the benefit of the laws of limitation because of the aforesaid facts would violate both the Texas and the United States constitutions, in that it deprives him of equal protection of the laws; forces penalties upon him not provided for either by the laws of Texas or of the United States; deprives him of his property without due process of law; inflicts upon him cruel, inhuman, and unusual punishment; subjects him to penalties and punishment not uniformly followed as the result of his conviction, but resulting from the action of the judge in designating the particular penal institution in which he was to serve his sentence, which action of the judge was in no manner connected with the severity of the punishment and did not anticipate nor contemplate any loss of civil rights of appellant which did not necessarily follow from the sentence imposed; and that denial of the right of appellant to plead limitation under the particular facts results in a violation of his constitutional rights aforementioned, and particularly Sec. 20 of Art. 1 of the Constitution of Texas, Vernon's Ann.St., which provides that: "No citizen shall be outlawed, nor shall any person be transported out of the State for any offence committed within the same."

These contentions were overruled by the trial judge, and judgment was rendered for appellee as prayed; hence this appeal, in which appellant presents one proposition, as follows: "Since the absence of appellant from the State of Texas was not a voluntary absence, and since such absence resulted from his being forcibly transported without the State and confined in a penal institution of the United States Government during the period of his absence, and since such transportation to and incarceration in a penal institution in the State of Oklahoma (as distinguished from a penal institution within the limits of the State of Texas) in fact constituted no part of his sentence for crime, and since the decision of the sentencing judge to confine him in an institution located in Oklahoma rather than in one located in Texas, was not to any extent a determination of the degree of punishment he should suffer and was made wholly without regard to any effect the place of confinement possibly may have had upon any of his civil rights, it was error for the lower court to hold that the statutes of limitations did not continue to run during the time he was confined at El Reno."

The question presented is novel. Neither party has cited any authority directly in point, and we have found none which would sustain the contention of appellant. Stripped down his contention seems to be that although he was legally convicted in a federal court for an offense in violation of the federal laws, and legally imprisoned in another state, the federal court trying him did so "wholly without regard to any effect the place of confinement possibly may have upon any of his civil rights" as a citizen of Texas; and in consequence his absence from the State was involuntary, and he could not thus be deprived of such rights, and that to do so would deprive him of the protection of the aforementioned provisions of the...