Stoudt v. Hanson

• Decision Date: 27 February 1922
• Docket Number: 4666.
• Citation: 205 P. 253,62 Mont. 422
• Parties: STOUDT v. HANSON.
• Court: Montana Supreme Court

205 P. 253

62 Mont. 422

STOUDT v. HANSON.

No. 4666.

Supreme Court of Montana

February 27, 1922

Commissioners' Opinion.

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by Edward E. Stoudt against J. P. Hanson. From judgment for plaintiff, and an order denying defendant's motion for a new trial, defendant appeals. Judgment and order affirmed.

Joseph J. McCaffery, of Butte, for appellant.

N. A Rotering, of Butte, for respondent.

STARK C. C.

This is an action on a promissory note. The complaint which was filed August 3, 1919, is in the usual form, and alleges that on April 10, 1908, at Butte, Mont., the defendant made executed, and delivered to the plaintiff his promissory note for the sum of $130, payable 90 days after date, bearing interest at the rate of 1 per cent. per month from date until paid, and providing for reasonable attorney's fees in case of suit thereon; that demand had been made upon the defendant for payment, but that no part of the same has been paid. Paragraph 3 alleges that $100 is a reasonable attorney's fee for the institution of this action." The prayer is for the amount of the note and interest and $100 attorney's fee.

The answer admits the execution and delivery of the note, that the same has not been paid, and in paragraph 3 "denies each and every allegation contained in paragraph 3 of said complaint." As a separate defense the answer avers that plaintiff's right of action on the note is barred by the provisions of section 6445 (section 9029, Rev. Codes 1921) of the Revised Codes of Montana. To this answer the plaintiff filed a reply denying that the action was barred under the statute, for the reason that between the 10th day of April 1908, and the 3d day of August, 1919, the defendant departed from the state of Montana and was absent therefrom on various occasions aggregating more than five and one-half years, and that the time of said absences is no part of the time limited for the commencement of an action on said note.

The case was tried before a jury. A competent witness testified that $75 was a reasonable attorney's fee for the institution and prosecution of the action.

The defendant himself, called as a witness on behalf of the plaintiff, testified that he left Butte in April, 1908, and was gone until September of that year, when he returned and remained until April, 1909; that between April 10, 1908, and August 3, 1919, he was absent from Montana on many occasions and for periods of time aggregating more than four and one-half years.

The plaintiff testified that he had made frequent demands upon defendant for payment of the amount of the note, but that the same had not been paid. Thereupon the plaintiff offered the note sued upon in evidence and rested his case.

The defendant in his behalf then showed that the complaint in the action was filed with the clerk of the court on August 3, 1919, and rested. Whereupon counsel for plaintiff moved the court to direct the jury to return a verdict for the plaintiff for the amount of the note and interest, with the sum of $75 attorney's fees, for the reason that it was admitted by the pleadings that the defendant made, executed, and delivered the note to the plaintiff, that the same had not been paid, although demand had been made therefor, that the uncontradicted evidence showed that $75 was a reasonable attorney's fee for the commencement and prosecution of the case, and that there was no evidence in the case proving or tending to prove that the cause of action was barred by the statute of limitations. This motion was sustained, and the jury, having been instructed in accordance therewith, returned a verdict upon which judgment was entered in favor of plaintiff and against defendant for the sum of $130, with interest at 1 per cent. per month from April 10, 1908, and the further sum of $75 attorney's fees, with costs of suit. Motion for new trial was duly made, and, having been overruled, the defendant has brought the case to this court on appeal from the judgment and the order denying his motion for a new trial.

The only question for our consideration is: Did the court err in sustaining plaintiff's motion for a directed verdict? Defendant contends that, since he was out of the state of Montana on July 10, 1908, when the cause of action accrued on the note, and returned to Montana in September, 1908, the statute of limitations began to run on the last-mentioned date, and that his subsequent absences from the state did not toll the statute. If this is true, then the right of action would have been barred in September, 1916--eight years after his first return. Section 9029, Rev. Codes 1921. To support his contention defendant relies upon section 6458, Rev. Codes 1907 (section 9048, Rev. Codes 1921), which reads as follows:

"If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action."

There are a few early cases which sustain the defendant's contention that the second clause of the section has no application to a person who is absent from the state when the cause of action accrues, but the better reasoning, as well as the great weight of authority, is to the contrary.

The first clause of this section originated in an old English statute (4 Ann. c. XVI, § XIX), and was adopted in Massachusetts as early as 1786, and in New York in 1788. The second clause was added to the New York statute at a later date, and was subsequently adopted in Massachusetts. In the case of Milton v. Babson, 6 Allen (Mass.) 322, the reason for, as well as the occasion of, adopting the second clause in Massachusetts is fully set forth:

"As the law stood prior to the enactment of the Revised Statutes (St. 1786, c. 52, § 4) the statute of limitations did not begin to run in favor of a person, who at the time the cause of action accrued against him was without the limits of the commonwealth, until his return within the state. * * * Doubts and difficulties had arisen under the old statute in ascertaining what should be deemed a return or coming within the state, in the sense of the statute, sufficient to cause the period of time necessary to bar an action to begin to run. To do away with the embarrassment which had thus arisen in interpreting the old statute, the second clause * * * was inserted. That this was the object of the alteration is apparent from the report of the commissioners on the Revised Statutes, who recommended the amendment in the precise form in which it was adopted. * * * They say, 'The latter part of this section is taken from the New York Code. The courts have felt bound to allow some latitude of construction as to what shall be considered a return into the commonwealth, within the intent of St. 1786, c. 52; 3 Mass. 271; 1 Pick. 263; and the precise limits of the rule in that respect are left undefined and uncertain. By the proposed alteration all doubt on the point will be removed, as the debtor must remain within the state during the whole period prescribed for the limitation, in order to avail himself of its provisions.' This serves to make the intent of the Legislature * * * perfectly clear. A return into the commonwealth was no longer to be sufficient of

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