Rock Island Plow Co. v. Masterson

• Decision Date: 14 November 1910
• Citation: 132 S.W. 216,96 Ark. 446
• Parties: ROCK ISLAND PLOW COMPANY v. MASTERSON
• Court: Arkansas Supreme Court

132 S.W. 216

96 Ark. 446

ROCK ISLAND PLOW COMPANY v. MASTERSON

Supreme Court of Arkansas

November 14, 1910

Appeal from Clay Circuit Court, Western District; Frank Smith Judge; affirmed.

Judgment affirmed.

J. N Moore, for appellant.

The action was not barred. The statute of the forum does not begin to run until the defendant comes within the jurisdiction in which the suit is brought. The time elapsing between the accrual of the right of action in the foreign State and the acquiring of residence in the State where suit is brought forms no part of the statutory period. 2 Vern 540; 13 East 439; 126 Ala. 616; 28 So. 620; 4 Conn. 47; 24 Conn. 432; 3 Kan. 26; 9 S.W. 507; 55 Me. 230; 12 Neb. 471; 11 N.W. 729; 3 Johns. Ch. 190; Id. 263; 12 Okla. 33; 13 S.E. 355; 15 S. Dak. 98; 5 Am. & Eng. Ann. Cas. 542.

G. B. Oliver, for appellee.

Not only are the acts of limitations in this State made by statute to apply to nonresidents as well as residents, but it is also the rule that the law of the forum governs the statute of limitations. Kirby's Digest, §§ 5069, 5076, 5077, 5088; 83 Ark. 495; 67 Ark. 189, 56 Ark. 187; 47 Ark. 170; 63 Ark. 244.

OPINION

FRAUENTHAL, J.

This is an action instituted by the appellant upon a note, and the appellee pleaded the statute of limitation as a bar to a recovery thereon. The note was executed in the State of Illinois on April 15, 1902, and was payable on September 20, 1902. At the date of its execution the appellant was a corporation domiciled in, and the appellee was a resident of, said State. The appellee moved to the State of Arkansas in 1905, and has resided in this State since that time. This suit was commenced more than five years after the maturity of said note, but within five years since appellee moved to and became a resident of this State. The lower court adjudged that the action was barred.

It is the well-settled rule that all suits must be brought within the period prescribed by the local law of the State in which the action is instituted. Personal contracts are interpreted by the law of the place where they are made, but the remedies for their enforcement are regulated by the law of the forum in which the suit is brought. The statute of limitation fixes the time within which the remedy must be pursued, and therefore applies to the remedy for a breach of a contract. The statute of limitation of the State in which the action is instituted determines whether or not it is barred. Wood on Limitations, § 8; Angell on Limitation, § 65; Blackburn v. Morton, 18 Ark. 384; Carter v. Adamson, 21 Ark. 287; Townsend v. Jemison, 50 U.S. 407, 9 HOW 407, 13 L.Ed. 194.

It is provided by section 5069 of Kirby's Digest that: "Actions on promissory notes and other instruments of writing not under seal shall be commenced within five years after the cause of action shall accrue, and not afterwards." It is urged by appellant that the accrual of the cause of action is not determined alone by the maturity of the note, but that the cause of action does not accrue, and the statute of limitations of the forum does not begin to run, until the defendant comes within the jurisdiction of the State in which the suit is brought. The soundness of this contention must be determined solely by the statute of limitation of this State. The cause of action ordinarily accrues whenever the liability of the defendant becomes complete, and in actions founded upon a note the cause of action thereon accrues at the maturity of such note.

Unless the statute makes exception, the operation of the statute of limitation will not be suspended during the absence from the State of either the creditor or debtor, nor will it be postponed because the debtor is absent from, or a nonresident of, the State at the time of the accrual of the action. The courts can not make an exception if none is expressly named in the statute. In the case of State Bank v. Morris, 13 Ark. 291, this court said: "The statute which created the limitation must also create the exception. We know of no rule of law or decision to the contrary." Clarke v. Bank of Mississippi, 10 Ark. 516; Pryor v. Ryburn, 16 Ark. 671; Machin v. Thompson, 17 Ark. 199.

In England, by the act of 4 and 5 Anne, it was provided that if the person against whom the action is brought shall be at the accrual thereof beyond the seas, the action may be brought against him after his return within the period fixed by the statute of limitation. Following this enactment, a similar provision has been incorporated in the statutes of many of the States postponing the operation of the statute of limitation until the return of the defendant to the jurisdiction of the forum in cases wherein the defendant was absent from such jurisdiction at the time of the accrual of such action. And in the early enactment of the statute of limitation in this State this exception was incorporated therein. By section 20 of chapter 91 of the Revised Statutes it was provided: "If, at the time when any cause of action specified in this act accrues against any person, he be out of the State, such action may be commenced within the times herein respectively limited after the return of such person into the State; and 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 herein limited for the commencement of such action." In like manner there was a provision postponing the operation of the statute in event the creditor was absent from the State at the time of the accrual of the cause of action. By the act of December 4, 1844 (Acts 1844, p. 25), these exceptions in the statute of limitation were expressly repealed. By said act it was further provided that: "This act and all other acts of limitation in force shall apply to nonresidents as well as residents of the State." Kirby's Digest, § 5076.

It then made the following provision for postponing the operation of the statute in cases where the debtor was a nonresident of the State at the time of the accrual of the action:

"If any debtor or debtors shall fraudulently abscond from any other State, territory or district to this State, without the knowledge of his, her or their creditor or creditors, such creditor or creditors may commence suit against such absconding debtor or debtors within the time of this act, or any other

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