Robinson v. Moore

• Decision Date: 06 June 1898
• Citation: 23 So. 631,76 Miss. 89
• Court: Mississippi Supreme Court
• Parties: CHASE T. ROBINSON v. JULIA A. MOORE

23 So. 631

76 Miss. 89

CHASE T. ROBINSON v. JULIA A. MOORE

Supreme Court of Mississippi

June 6, 1898

March 1898

FROM the circuit court of Noxubee county HON. G. B. HUDDLESTON Judge.

The facts are stated in the opinion of the court.

Affirmed.

Calhoon & Green and J. E. Rives, for appellant.

In order to a correct conclusion in the construction of the statute involved, it is necessary to examine carefully the language of all the statutes on the subject: Hutch. code, p 827, clause 12; code of 1871, § 2157; code of 1880 §§ 2684, 2748; code 1892, § 2754.

In the discussion of this case we really have no sort of concern with clause 12, Hutch. code, p. 827, with § 2157 code of 1871, or with § 2678, code 1880, or with § 2748, code of 1892, but it is proper to consider these sections and the cases on them in order to correctly determine the trend of the court of last resort of this state, and also the changes made by the legislature, so that a proper conclusion may be reached as to the causes of the changes in the statute.

Clause 12, p. 827 Hutch. code, has been the subject of consideration by this court but once, and that is in an opinion by Chief Justice Sharkey in the case of Estes v. Rawlins, 5 How. (Miss.), 258. This opinion was based on what the court calls "the broad and unequivocal enactment" itself. The argument was made in that case by Judge Daniel Mayes that the word "return" in the latter clause of the statute shows that it could only apply to a person who had gone out of the state, inasmuch as no one could return to a place unless he had once been in it. Judge Sharkey holds that the statute applies to defendants who never had been in the state as well as to those who had been in and gone out of the state, and he says that the word "return" is the only thing favoring a different construction, and there could be no good reason for allowing that to control and limit the unmistakable terms of the statute itself. It will be noted that statute distinctly provides that the limitation cannot be set up by any one against whom there is a cause of action who shall be out of the state at the time it accrued or during the time of such action. It is plain that this statute and the judicial construction of it cannot have any reference whatever or throw any sort of light upon the matter now before the court.

The next statute which appears is § 2157 of the code of 1871, being the only section in that code on the subject, and this section has been judicially construed to apply to cases where the defendant was a nonresident at the time the cause of action accrued. The court will note that in neither one of these statutes is there anything said about the cause of action accruing "in this state." Some of the cases construing this section will be found in 50 Miss. 267; 51 Miss. 291; 53 Miss. 541, and 62 Miss. 763. The decisions, it is clear, shed no light on the cause at bar. We ask attention to the wording of this section, 2157. It seems to confine itself to the time when any cause of action accrues and after any cause of action accrues, and does not in either case contain the words "in this state, " and the code of 1871 is absolutely silent as to the matters involved in § 2754 of the code of 1892.

Section 2748 of the code of 1892 puts in the words "in this state, " which nowhere appear in any precedent statute, and provides that if after the cause of action accrues in this state the defendant shall be absent from and reside out of the state, the time of absence shall be deducted after his return. This section, as we have before stated, is precisely the same as § 2678 of the code of 1880, and has been repeatedly construed by the supreme court, as will be seen by Judge Campbell's notes to that section of the code of 1880, and also in 60 Miss. 832, and 66 Miss. 239.

In the case of Lindenmeyer v. Gunst, 70 Miss. 693, the supreme court construed § 2678 of the code of 1880, and held that it was only where the right of action accrues in this state and the person goes from and resides out of the state, that the section applied to prevent the running of the statute of limitation. This decision is extremely significant in support of the words "in this state" meaning where a person was in this state, could be sued, and then went out of it, and Judge Campbell said: "It applies only where a cause of action accrues in this state and the person against whom it has accrued goes from and resides out of the state."

It cannot be imagined why the words "in this state" should be added upon any other basis. A cause of action accrues to any person anywhere in the world who holds the claim when it is due. It would accrue to a man in this state or any other state or country. Our position is that the whole scope of the statute shows that the words of the statute, "in this state, " have reference to the cause of action which may be sued on and the party found in this state. If this is not the true view, what can be the sense of § 2754 of the code of 1892, which is the same as § 2684 of the code of 1880, which speaks of a cause of action accruing in some other state, and also speaks of a cause of action accruing in this state, where the defendant has resided before he resided in this state. The whole scope of it shows that the serious modifications of the statute from that of Hutchinson's code are made in consonance with the uniform tendency of the courts to a liberal construction of the statutes of limitation in favor of the repose of society and to give anyone exemption where he is exempted by the law of the state in which he lives.

Now, § 2754 appears for the first time in the code of 1880, and is the precise statute upon which we rely in the case at bar, and means what it says--that no person against whom a cause of action has accrued in some other state by the law of which the action is barred, can be sued in this state. This section has undergone consideration in the supreme court but once, and that is in the case of Railroad Co. v. Pool, 72 Miss. 487, in which case an action was brought for an ox killed by the company, and the company set up the statute of limitation of Alabama of six months, and this court held, Judge Campbell delivering the opinion, that the section had in view the case of a nonresident protected by the bar of the statute of limitation of the state where he resided, who afterwards came into this state, and we insist that the court seems to take it for granted that but for the fact that the railroad company resided in both states, the Alabama law would prevail.

We ask special attention to the case of State v. Furlong, 60 Miss. 846. It will be noted that this case was construing § 2678 of the code of 1880, which is the same as § 2748 of the code of 1892, and does not touch the section on which we rely, but is quite significant in determining the construction of the section on which we base our defense. The Furlong case held that the absentee, in order to have the benefit of the statute of limitation, must reside out of the state, and have no residence here, and leave no means here of proper service on him, and this after there was a cause of action against him which might at one time have been enforced against him by proper process in this state, because, the court suggested, if any other was the intent of the legislature, the creditor would have to sue, and may by catching him "on the wing."

It seems to us impossible to examine the law under Hutchinson's code and that under the code of 1871 and that under the code of 1892, and fail to see that § 2754, annotated code of 1892, was enacted with the particular view of covering a case where a man might be sued in another state where he had a residence and is protected by the laws of that state. If this be not true, we fail to perceive any reason for the enactment of § 2754 of the code of 1892, because every other conceivable state of case would be covered by the other act. The growth of the law in judicial decisions has been uniformly towards a liberal construction of statutes of limitation in favor of the repose of society. A very lucid and cogent opinion on the subject is to be found in Hyman v. Bayne, 83 Ill. 256, which we ask this court to examine. We also call attention to Wernse v. Hall, 101 Ill. 423; Sloan v. Waugh, 18 Iowa 234; Pitchell v. Hopkins, 19 Iowa 531.

Solely under the adjudications, it ought not to be held that a citizen of Tennessee could sue a citizen of Mississippi in Tennessee, which citizen had a residence in Mississippi, where the cause of action accrued, and continuously for ten to twelve years thereafter. The appellant in the case at bar had a fixed residence in the State of Tennessee, where the debt was contracted, and the creditor knew he could always find the appellant in that state and sue him there, but failed to do so until the bar of the statute of limitation of Tennessee attached. If the bar is not complete, it is difficult to see why, and if the bar is complete, by the lapse of the statutory time in Tennessee, it would never become barred, and there might occur the monstrosity, as developed in the case of Putnam v. Dike, 79 Mass. 535, where there was recovery of a debt with forty years' interest on it, a situation commented upon in several cases as a curiosity of jurisprudence.

C. B. Ames, for appellee.

The question is, whether or not a citizen of Tennessee can successfully plead the statute of limitations of Mississippi on a Mississippi contract, against a citizen of Mississippi, when he has never been within the state, or within reach of the process of its courts? On principle and in reason, to ask the question is to answer it in the negative. Had Robinson been a citizen of Mississippi, and absent from the state only half the time, h...