Stone v. Phillips

• Decision Date: 05 January 1944
• Docket Number: No. 8136.,8136.
• Citation: 176 S.W.2d 932
• Parties: STONE et al. v. PHILLIPS
• Court: Texas Supreme Court

176 S.W.2d 932

STONE et al. v. PHILLIPS

No. 8136.

Supreme Court of Texas.

January 5, 1944.

Rehearing Denied February 2, 1944.

Error from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by John R. Phillips against Mary Phillips Stone and husband to recover on a note and foreclose a lien on land. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 171 S.W.2d 156, and defendants bring error.

Affirmed.

Baker & Baker and R. E. Murphey, both of Coleman, for plaintiffs in error.

E. M. Critz, of Coleman, and Shepherd & Patteson, of Ballinger, for defendant in error.

ALEXANDER, Chief Justice.

This suit was brought to recover on a debt evidenced by a promissory note and to foreclose a lien on land. The defendants pleaded the four years' statute of limitation, to which the plaintiff replied that the defendants had been absent from the State since the cause of action accrued, and that under the provisions of Revised Statutes, Article 5537, the statute of limitation had been suspended. At the conclusion of the evidence the trial court withdrew the case from the jury and instructed a verdict for plaintiff. This judgment was affirmed by the Court of Civil Appeals, Justice Stokes dissenting. 171 S.W.2d 156.

The note sued on was executed by Mary Phillips, now Mary Phillips Stone, one of the defendants, on October 4, 1926, and was due in monthly installments, the first installment being due November 4, 1926, and the last one on November 4, 1928. The suit was filed September 8, 1941.

Revised Statutes, Article 5537, reads as follows: "Art. 5537. 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."

The defendant Mary Phillips Stone was reared in Texas and resided for many years at Ballinger, where she served for a time as District Clerk. Later she moved to Brownwood, Texas. During all this time she was a single woman. On July 30, 1924, she left Texas for Washington, D. C., where she lived until 1933, and then moved to Maryland. Except for a brief visit in 1937, she did not return to Texas until 1941. She married Aaron Stone in the State of Virginia on April 21, 1928. The record does not show where he resided, except that at the time of the trial in 1942 he resided in Maryland. As shown in the opinion of the Court of Civil Appeals, Mrs. Stone testified most emphatically, against her interest, that during all of her absence she never abandoned her home in Texas; that she always considered herself a citizen of Texas and claimed Texas as her home; that she was only temporarily absent from Texas; that while she did not vote during her absence, she always claimed the right to vote in Texas; that she retained her citizenship here, and always claimed this as her legal residence.

It may be conceded, for the sake of this decision, that Aaron Stone's domicile was in some State other than Texas, and that upon Mrs. Stone's marriage to him on April 21, 1928, her residence and domicile became the same as that of her husband. Clements v. Lacy, 51 Tex. 150; Henderson v. Ford, 46 Tex. 627; 23 Tex.Jur. 19.

From the time of the execution of the note in 1926 to the time of her marriage in 1928, Mrs. Stone was a single woman and had the right to select her own domicile. 15 Tex.Jur. 712. The mere fact that she left Texas and had resided temporarily in Washington prior to her marriage would not destroy her domicile in Texas, nor forfeit her Texas citizenship, so long as there was an intention on her part to retain her domicile in this State. 15 Tex.Jur. 712, 713; 28 C.J.S., Domicile, § 13, p. 30; 17 Am.Jur. 604; McIntyre v. Chappell, 4 Tex. 187; Pecos & N. T. R. Co. v. Thompson, 106 Tex. 456, 167 S.W. 801. Her testimony leaves no doubt but that at all times prior to her marriage her domicile was in Texas. We will therefore assume that her domicile was in Texas at the time the note was executed; that she became a citizen and resident of some other State in April, 1928; and that she never returned to Texas until 1941, the year in which the suit was filed.

Under the plain provisions of the statute, since the defendant was absent at the time the right to sue accrued, and remained absent until only a short time prior to the filing of the suit, the action was not barred by the four years' statute of limitation.

Defendants seem to be of the opinion that, since Mrs. Stone was a nonresident of the State at the time the note matured and the right to maintain the suit accrued, Article 5537 is inapplicable. In the case of Snoddy v. Cage, 5 Tex. 106, this court held that where the defendant had never been in this State, the statute was inapplicable to a suit against him. That construction was actuated by the then-prevailing policy to encourage immigration to this State, and was based on the fact that the statute authorized the maintenance of the suit "after the return" of such person to the State. It was there pointed out that a person who had never been in the State could not "return to" the State. The holding in that case was followed in Huff v. Crawford, 88 Tex. 368, 30 S.W. 546, 31 S.W. 614, 53 Am.St.Rep. 763, but in the companion case of Wilson & Co. v. Daggett, infra, it was recognized that such holding was contrary to the construction given similar statutes in other States. The court in discussing its holding in Huff v. Crawford, supra, said: "We were driven to that ruling, because the decision in that case (Snoddy v. Cage) had been repeatedly affirmed by this court, and because the statute had been re-enacted without material change in its language after it had been so...