Runkle v. Pullin
| Decision Date | 12 March 1912 |
| Docket Number | No. 7,543.,7,543. |
| Citation | 49 Ind.App. 619,97 N.E. 956 |
| Parties | RUNKLE v. PULLIN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Whitley County; L. H. Wrigley, Judge.
Action by Luther W. Pullin against James M. Runkle. From a judgment for plaintiff, defendant appeals. Affirmed.
Andrew A. Adams, for appellant. E. K. Strong, for appellee.
Appellee brought this action to recover money which he had paid as surety for appellant on a certain promissory note. Upon the trial the court made a special finding of facts and stated as its conclusion thereon that appellee was entitled to recover from appellant the sum of $319.28. Appellant relies upon the following errors for reversal: (1) Overruling appellant's demurrer to the complaint. (2) Sustaining appellee's demurrer to the second paragraph of appellant's answer. (3) Error of the court in its conclusion of law. (4) Error of the court in overruling appellant's motion in arrest of judgment. These assignments present two questions: (1) Does the complaint state a cause of action? (2) Is appellant's plea of the statute of limitations of Nebraska a bar to appellee's cause of action? If the court did not err in respect to these questions, it is conceded that the conclusions of law are correct.
The complaint avers, in substance, that appellee on May 30, 1881, became surety for appellant on a promissory note for $200, payable to the Lake City Bank at Warsaw, Ind.; that appellant made certain payments thereon, and on September 15, 1883, there was due on said note a balance of $103.20, which appellee was compelled to pay and did on said date pay at Columbia City, Ind., as such surety; that appellant had previously left the state of Indiana and continuously remained out of the state until a few days previous to the commencement of this action; that there is due appellee in principal and interest $320 and $100 attorney's fees, for which appellee demands judgment and all proper relief. Copy of the note was made an exhibit with the complaint.
[1][2][3] Fairly construed, we think the complaint states a cause of action for the recovery by the surety from the principal of the amount paid by him as such surety on the default of the principal. The complaint counts upon the implied obligation of the principal to reimburse the surety for money necessarily paid by him as such surety, and not upon the note. The theory of a complaint is to be determined by its general scope and tenor, and not by fragmentary statements, or detached parts thereof. The note was not a necessary exhibit, but the nature of the action was not changed by the exhibit. Mercia v. Ft. Wayne, etc., Co., 97 N. E. 192;Monnett v. Turpie, 132 Ind. 482, 32 N. E. 328; Burns 1908, § 1276. The demurrer was properly overruled. Gieseke v. Johnson, 115 Ind. 308, 17 N. E. 573;Kreider v. Isenbice, 123 Ind. 10, 23 N. E. 786;Vermeule v. York Cliffs Imp. Co., 134 Am. St. Rep. 557, note.
The second paragraph of appellant's answer admits that on September 15, 1883, appellee paid the sum of $103.20 as surety for appellant, and that appellant was at the time a nonresident of this state. It also avers that appellant was at the time of such payment a resident of the state of Missouri and continued so to be until the year 1886, when he removed to and became a resident of Furnas county, state of Nebraska; that he has continued to be and now is a resident of the state of Nebraska; that the statute of said state relating to the time of commencing civil actions, such as the one at bar, requires the suit to be brought within four years from the time the cause of action accrues (copy of the statute is set out with the pleading); that said statute was enacted in 1867 and has been in force continuously since that date; that appellee's cause of action did not accrue within four years next preceding the bringing of this action. The court found the facts substantially as averred in the complaint and in said second paragraph of answer; also, that this suit was commenced on September 6, 1909; that appellee was a resident of the state of Indiana on May 30, 1881, and has been continuously since that time.
The Indiana Statute (Burns 1908, § 299) is as follows:
The right of appellant to the benefit of the Nebraska statute of limitation depends upon the answer to the question: Where did the cause of action arise? If the cause of action arose in this state, he cannot receive any benefit from the Nebraska statute, for our statute clearly limits the benefits of such statute to “causes of action arising without this state.” Where the cause of action arises in this state, the nonresidence of the defendant, as shown in this case, deprives him of the benefit of the statute of limitations either of this, or the state of his residence, when the suit is brought in this state. Morrison v. Kendall, 6 Ind. App. 212, 33 N. E. 370;Wood v. Bissell, 108 Ind. 229, 9 N. E. 425;Mechanics' Building Ass'n v. Whitacre, 92 Ind. 547;Balph v. Magaw, 33 Ind. App. 399-402, 70 N. E. 188;Watson v. Lecklider, 147 Ind. 395-401, 45 N. E. 72.
[4] But these cases do not settle the question as to where the cause of action arose. The action is based upon the implied obligation of the principal to reimburse his surety for money paid as such surety. This obligation did not arise until payment was made, which in this case was September 15, 1883.
The note was both given and made payable in this state. All the parties to the transaction resided in Indiana; but appellant removed from the state and was a nonresident when appellee paid the balance due on the note, has continued to be and was at the date of the trial such nonresident. It is insisted that because of these facts the cause of action arose out of this state, and appellant is entitled to the benefit of the statute of the state of Nebraska. In other words, that the place of the residence of the defendant determines where the cause of action arises.
It is not disputed that the payee of the note could have brought suit against the principal and surety in this state, and if service of process had been obtained upon appellant, could have taken a personal judgment against him notwithstanding his nonresidence. True, the suit of the surety is not upon the note, but appellant was not harmed by the payment by the surety, and the consequent suit by him upon the implied contract, instead of a suit by the payee or owner of the note upon the original obligation. This reasoning does not settle the question at bar, but it does indicate that the equity of the case is...
To continue reading
Request your trial