Venuci v. Cademartori

• Decision Date: 31 March 1875
• Citation: 59 Mo. 352
• Parties: RAPHAEL VENUCI, et al., Plaintiffs in Error, v. DOMINICO CADEMARTORI, Defendant in Error.
• Court: Missouri Supreme Court

59 Mo. 352

RAPHAEL VENUCI, et al., Plaintiffs in Error,

v.DOMINICO CADEMARTORI, Defendant in Error.

Supreme Court of Missouri.

March Term, 1875.

Error to St. Louis Circuit Court.

Arba N. Crane, for Plaintiffs in Error.

I. The statutory exception, (Wagn. Stat., 919, § 16) applies, because during the defendant's sojourn in Italy plaintiffs could not have had service and judgment against him here, that could be asserted in a foreign jurisdiction. (Johnson vs. Smith, 43 Mo., 499, 501.) Our statute, (Wagn. Stat., 599, § 60) which makes the place where the family of a party resides in this State, the abode of such party, has no application here, because it affirmatively appears that Cademartori was living abroad all the time, and, therefore, no question of constructive residence arises. And Cademartori not in fact being a resident citizen of Missouri during the eleven years he lived in Italy, our courts for extra-territorial purposes could acquire no jurisdiction over him during that time; so that the supposed power of the State to regulate process against its own citizens, so as to bind them, any and everywhere, does not apply. (Latimer vs. Pac. R. R. Co., 43 Mo., 105.)

At best defendant had only a technical domicile in this State by reason of the residence of his family here; but his own abode was necessarily where he was living all this time. which was in Italy. How then could any place in Missouri be considered the usual place of abode of Cademartori, for the purpose even of that sort of constructive personal service? (Wagn. Stat., 1007, § 7, 3 subd.; Johnson vs. Smith, 43 Mo., 501; Brown vs. Rollins, 44 N. H., 446.)Samuel Reber, for Defendant in Error.

I. Absence from the State does not stop the running of the statute, where the defendant maintains his family and residence here, so that he may be sued by the ordinary process of law. (Garth vs. Robards, 20 Mo., 523.)

WAGNER, Judge, delivered the opinion of the court.

The only question presented by the record, is, whether the statute of limitations constituted a defense. The case was tried on an agreed statement of facts, and it shows that on the 1st of August, 1859, defendant made his promissory note for the sum of $278, payable to one of the plaintiffs one year after the date thereof; that at the time of the execution of the note defendant resided in the city of St. Louis with his family, and that in the spring of 1861, he went to Italy, leaving his wife and family at his residence in the said city, and that he remained absent till the year 1872, when he returned: that at the time he left for Italy, he left his family, consisting of his wife and children, at his residence, where they remained during the whole time, and provided for their support until his return; that at the time of his departure he was the owner of real estate in the city of St. Louis, and that before he left he conveyed the same to a trustee for his wife and family, in case of his death during his absence. On these facts the court held that the statute was a bar, and gave judgment for the defendant.

Section 16 of the second article of the limitation act, (Wagn. Stat., 919) provides that, if after the cause of action accrues against any person, the person shall 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 limited for the commencement of the action. The...