Walker v. L. E. Meyers Const. Co.

• Decision Date: 08 October 1935
• Docket Number: Case Number: 25344
• Parties: WALKER, Adm'x, v. L. E. MEYERS CONST. CO.
• Court: Oklahoma Supreme Court

1935 OK 965

53 P.2d 547

175 Okla. 548

WALKER, Adm'x, v. L. E. MEYERS CONST. CO.

Case Number: 25344

Supreme Court of Oklahoma

Decided: October 8, 1935

Syllabus

¶0 1. LIMITATION OF ACTIONS--Tolling of Statute by Defendant Foreign Corporation Being "Out of State."

For a foreign corporation to be a nonresident of the state, or out of the state, in the sense of the statute, it must be out of the state in such sense as to render it impractical at all times to obtain service of process upon it. If such notice can be served during the whole of the prescribed period, and a personal judgment obtained which can be enforced in the mode provided by law, then such person or corporation is not "out of the state", within the meaning of section 104, Okla. Stats. 1931, which provides: "If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

2. SAME--Where Plaintiff Fails in Action Otherwise Than Upon Merits Statute Held to Authorize Only One New Action After Expiration of Limitation Period.

Under section 106, Okla. Stats. 1931, providing that if an action be commenced within due time and the plaintiff falls in such action otherwise than upon the merits and the time limited for the same shall have expired, the plaintiff may commence a new action within one year after the reversal or failure, a plaintiff may not bring repeated actions, after nonsuits, but only one action after expiration of the applicable period of limitation.

Appeal from District Court, Oklahoma County; Hal Johnson, Judge.

Action by May Walker, administratrix of the estate of Joe D. Walker, against the L. E. Meyers Construction Company. Demurrer to petition sustained, and cause dismissed and plaintiff appeals. Affirmed.

Counts & Counts, for plaintiff in error.

Thos. H. Owen and Paul N. Lindsey, for defendant in error.

PER CURIAM.

¶1 The plaintiff in error, hereinafter styled plaintiff, commenced this action on January 22, 1932, against the defendant in error, hereinafter styled defendant, seeking to recover damages for the death of Joe D. Walker. Plaintiff alleging in her third amended petition filed that Joe D. Walker came to his death through the negligence and carelessness of the defendant. on the 29th day of April, 1928. Further alleging that on the 23rd day of August, 1929, this plaintiff filed her petition against this defendant in the district court of Murray county, Okla., seeking to recover damages for the wrongful death of Joe D. Walker; that said action was removed to the federal court for the Eastern District of Oklahoma, and defendant filed its answer therein, and that thereafter, and on the 3rd day of June, 1930. said cause was dismissed without prejudice and without having been heard upon its merits.

¶2 That subsequent thereto, and on July 3, 1930, plaintiff brought suit for the aforesaid wrongful death of Joe D. Walker against this defendant in the district court of Oklahoma county, Okla., and defendant appeared therein and filed its answer to plaintiff's petition: that this said action was dismissed without prejudice on January 15, 1932, and was never tried on its merits.

¶3 Plaintiff further alleges in said third amended petition that on the 29th day of November, 1929. the defendant, a foreign corporation, voluntarily withdrew from the state of Oklahoma, cancelled its charter, permit. and license to do and transact business therein, and did not return to the state of Oklahoma and resume doing business therein until the 15th day of April, 1933. To this third amended petition defendant in due course filed its demurrer, demurring to said petition on the grounds that said petition showed upon its face that the cause of action attempted to be alleged therein was barred by the statutes of limitation governing said cause of action. Thereafter, and on the 30th day of August, 1933, defendant's demurrer was sustained. Plaintiff elected to stand upon her petition; declined to plead further. Thereupon, judgment was rendered for defendant, dismissing said cause, and plaintiff appealed to this court from said order.

¶4 The parties to this action, in their briefs filed herein, devote much time and space to the proposition whether the statute of limitation governing said cause of action was tolled by the absence of the defendant from the state of Oklahoma during the period alleged in plaintiff's petition. Plaintiff contending that said statute was tolled by reason of the fact that defendant was absent during said period, and by reason of the fact that service of summons could not be had on said defendant during said period by serving the Secretary of State, for the reason that said defendant was not doing business in the state of Oklahoma during said period. Plaintiff further contending that. even though defendant could have been served with process by serving the Secretary of State, defendant was still "out of the state" within the meaning of section 104, Okla. Stats. 1981.

¶5 Defendant contending that under section 9788, Okla. Stats. 1931, said defendant could have been served by serving the Secretary of State, by reason of the fact that the asserted cause of action of plaintiff had arisen prior to the withdrawal of the defendant from the state of Oklahoma, and that therefore the statute was not tolled.

¶6 It is our opinion that the position of the plaintiff is not tenable and that the statute was not tolled during the absence of the defendant from the state of Oklahoma; this for the reason that defendant could have been served with process and a personal judgment rendered under section 9788, Okla, Stats. 1,931, the applicable portion of which is as follows:

"* * * And in case any domestic or foreign corporation shall remove from the state * * * it shah be lawful to serve any such corporation, its officers, directors, or trustees, by service upon the Secretary of State, and such service shall be as effective to all intent and purposes as if made upon the president or head officer of such corporation, or on the directors or managers of the affairs of such corporation, or the trustees thereof as hereinbefore

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