Weaver v. Davis

• Decision Date: 16 May 1907
• Docket Number: 288,289.
• Citation: 58 S.E. 786,2 Ga.App. 455
• Parties: WEAVER v. DAVIS et al.
• Court: Georgia Court of Appeals

58 S.E. 786

2 Ga.App. 455

WEAVER v. DAVIS et al.

Nos. 288, 289.

Court of Appeals of Georgia

May 16, 1907

Syllabus by the Court.

As a general principle, statutes of limitation are subject to no exceptions, unless such exceptions be expressed.

(a) Notwithstanding this general rule, the courts will imply judicial exceptions from "invincible necessity," where it is legally impossible for the plaintiff to sue within the time limited.

(b) The absence or the removal of the defendant from the state is a statutory, and not a judicial, exception.

(c) The limitation statute of March 16, 1869 (Laws 1869, p. 133) wherein shall causes of action which accrued prior to June 1 1865, were required to be sued prior to January 1, 1870 contained no exception saving from its operation suits against defendants who had removed beyond the limits of the state, and no such exception can be implied as to actions falling within its terms.

[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§§ 13, 440.]

Error from Superior Court, Newtown County; L. S. Roan, Judge.

Actions by Julia Davis and others against J. S. Weaver. Judgment for defendant in the county court was reversed on certiorari, and defendant brings error. Reversed.

Russell, J., dissenting.

Cornwell & Gunn, Greene F. Johnson, and J. D. Kilpatrick, for plaintiff in error.

Rogers & Knox, for defendant in error.

POWELL J.

On February 5, 1862, Weaver executed his two promissory notes, payable to Nancy Weaver or bearer, due 12 months after date, for $175 each. The notes afterwards became the property of the plaintiffs. In 1866 Weaver left the state of Georgia, and went to the state of Texas, and has never returned to reside in this state. In 1905 Weaver became entitled, by will, to a legacy of the value of some $3,000 in the hands of an executor in this state; and the plaintiffs sued out an attachment and garnishment. The declaration in attachment set out the facts stated above. The defendant resisted the action, by demurrer, asserting that the cause of action having accrued prior to June 1, 1865, the same became barred on January 1, 1870, by virtue of the fourth section of the limitation statute of March 16, 1869. Laws 1869, p. 133. The county judge sustained the demurrer. The plaintiffs brought certiorari. In the superior court the certiorari was sustained, and the judgment of the county court reversed. To this judgment of the superior court the defendant excepted, and brings error to this court.

The statute of March 16, 1869, was drastic in terms. It was broad and sweeping. In substance, it provided that all suits upon causes of action which accrued prior to June 1, 1865, should be brought by January 1, 1870, and not thereafter. No exceptions were made, save only cases against certain fiduciaries for fraudulent conduct. No reference was made in the act to any of the ordinary exceptions to the running of limitation appearing then, as now, in the Code. It is contended by the plaintiff in error that it was not the intention of the Legislature to repeal, or to render unavailing, the provision then existing in the Code and now contained in Civ. Code 1895, § 3783, viz.: "If the defendant in any of the cases herein named shall remove from the state, the time of his absence from the state, and until he returns to reside, shall not be counted or estimated in his favor." At first blush, this view seemed to us to be tenable, but, after a thorough examination of the decisions which have been rendered in relation to this act (and the Supreme Court had the statute before them for consideration very frequently during the decade immediately following its passage), we have reached the conclusion that the county judge was correct, and that the statute is subject to no exceptions other than those contained therein, save only that class of exceptions applicable from necessity to all limitation laws and known as "judicial exceptions." His honor, Samuel H. Sibley, judge of the county court of Greene county, presided at the trial of the cause, and filed with his judgment sustaining the demurrer an opinion. This eminent young jurist has gone into the question so carefully, and has collated and distinguished the authorities so well, that we are content to incorporate his opinion herein, with only a few additional remarks. Judge Sibley's opinion is as follows.

"The note sued upon is not under seal, is dated February 5, 1862 and is due one year thereafter. In February, 1863, limitation began to run, until suspended by the Legislature of 1864. In 1866 the defendant removed to Texas, and has since resided there. Under the act of 1855 and the Code provisions since, this removal suspended the statute of limitation, even after the repeal of the suspending statutes passed during the war; and made an attachment of the debtor's effects in this state possible at any time prior to the expiration of the limitation period after his return to reside in this state. Whitman v. McClure, 51 Ga. 590. The attachment in this case, though sued out 45 years after the maturity of the debt and the accrual of the cause of action thereon, would be in time, unless barred by the provision of the act of 1869. That act, stated generally, provides that actions not barred in March, 1869, on notes maturing prior to June 1, 1865, should be brought by January 1, 1870, or the right of the party plaintiff, and all right of action for its enforcement, should be forever barred. In its last section the act provides that causes of action accruing since June 1, 1865, should be 'controlled and governed by the limitation laws as set forth in the revised code of Georgia.' It does not appear in the pleadings whether at all times since the removal of the defendant from the state he has had property here capable of attachment; nor is that question material. The note is the cause of action, even where the special remedy by attachment is pursued; and it must be concluded that this is an action on a note 'accruing prior to June 1, 1865,' and within the provisions of the act of 1869, and not within the 'limitation laws as set forth in the Code.'

"Is the act of 1869 a statute whose only purpose was to make a uniform and short period of limitation, equal to 9 months and 15 days, for the classes of action dealt with by it, in substitution of the varying and longer periods named in the Code, leaving all other provisions of the limitation laws, and especially the 'exceptions and disabilities,' applicable to this new period so prescribed? Or was it intended to be, for the classes of actions covered by it, generally described as 'ante bellum claims,' the exhaustive and only limitation law, without other exceptions than stated in its face? As an original proposition, I think the latter was its purpose; that it was intended to meet a situation unprecedented, and to compose and set at rest all contention dating beyond that period, that saw not only political, but financial revolution, that had altered all conditions and disturbed all calculations, removed from life probably nine tenths both of parties and witnesses to disputes, and made imperative a complete readjustment of all business affairs-that it was intended to be as near a statute of bankruptcy as the state could enact. Constitutional considerations, however, have made this purpose not free from embarrassment, and have produced interpretations of the statute by our Supreme Court, perhaps not free from contradiction. In Hobbs v. Cody, 45 Ga. 478, it was held that a ward arriving at majority in September, 1869, was not barred in August, 1870, from suing her guardian for her estate, received in 1860. This case has been cited in Lake v. Hardee, 57 Ga. 459, 467, as authority for the proposition that the act of 1869 did not run during a plaintiff's minority. It really ruled that the plaintiff's right of action against her guardian did not accrue until maturity gave her the right to demand possession of her estate. It has been pointed out, too, that the suit was for the estate as it was in 1869, and not for a devastavit prior to June, 1865, and so not within the act of 1869. Jordan v. Ticknor, 62 Ga. 129. Compare Windsor v. Bell, 61 Ga. 671 (2).

"In Adams v. Davis, 47 Ga. 339, the question was whether a suit validly begun within the period named by the act of 1869, could be renewed within six months of its dismissal after January 1, 1870, by reason of the exception to that effect found in section 2881 of the Code of 1868. That section is in title 7, c. 9, art. 9 of that Code, which article is entitled, 'Limitations of actions on contracts.' The article is subdivided into three sections: 'Periods of Limitations,' 'Exceptions and Disabilities,' and 'New Promise.' Section 2881 is one of the paragraphs of the second section named. The question was squarely made whether the act of 1869 merely substituted the...