West v. Theis

• Decision Date: 24 June 1908
• Parties: JENNIE E. WEST, Executrix, Appellant, v. CHARLES THEIS, Respondent
• Court: Idaho Supreme Court

96 P. 932

15 Idaho 167

JENNIE E. WEST, Executrix, Appellant, v. CHARLES THEIS, Respondent

Supreme Court of Idaho

June 24, 1908

LIMITATIONS OF ACTIONS-BAR OF CAUSE OF ACTION ARISING IN FOREIGN STATE-COMPUTATION OF PERIOD OF LIMITATION-WHEN CAUSE OF ACTION ARISES IN FOREIGN STATE-"RETURN TO THE STATE."

1. The words "return to the state" used in sec. 4069, Rev Stat., providing that "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," apply to a nonresident debtor who enters into a contract in a foreign state, and thereafter comes into this state, as well as to a citizen who enters into a contract within this state, and thereafter departs from the state.

2. The phrase "has arisen in another state" used in sec 4079, Rev. Stat., providing that "when a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action cannot there be maintained against a person by reason of the lapse of time an action thereon shall not be maintained against him in this state," refers to and means the state in which the foreign contract is to be paid or discharged, and has no application to an intermediate state or foreign country through which the debtor may subsequently travel or in which he may reside for a sufficient length of time to constitute the bar of the statute of limitations of such state prior to coming to this state, where an action is eventually commenced.

3. Under the provisions of sec. 4079, Rev. Stat., "a cause of action arises" at the time and the place in the state or foreign country when and where the debt is to be paid or the contract performed, and the cause of action thus arising continues and follows the debtor until such time as it is either barred by the statute of limitations of the state wherein it arose, or until the debtor has lived within this state a sufficient length of time to bar it by the statute of limitations of this state.

4. Where T. executed promissory notes in the state of Kansas and agreed to pay at a definite time and place within that state and thereafter left the state and went to the state of Washington, and there resided a sufficient length of time to bar the right of action under the statutes of the state of Washington, and thereafter came to Idaho where he was sued upon the cause of action, and it appears that the statute of limitations of the state of Kansas has not yet run against the obligation, and that the debtor has not been in this state a sufficient length of time to bar the action here, he will not be permitted to plead the bar of the statute of limitations of the state of Washington;-in such case the only inquiry is as to the statute of limitations of the state in which the debt was contracted and agreed to be paid, and of this state wherein the action is being prosecuted.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.

Action by the plaintiff to recover the principal and interest on four promissory notes. Judgment for defendant on the plea of the bar of the statute of limitations. Plaintiff appeals. Reversed.

Judgment reversed, and a new trial granted, and cause remanded. Costs awarded in favor of appellant.

Richard H. Johnson, for Appellant.

Under statutes the same as our secs. 4069 and 4079, Rev. Stat., the highest courts of Montana, Oklahoma and California, in cases identical on the facts and involving this precise question, have held that this statute has reference only to the statute of limitations of the place where the contract was made and to be performed, and not to every other place where the defendant in the interim may have visited or resided, and that if the contract could be enforced in the state where it was made and to be performed, it should be enforced in the place where suit is brought, unless barred by the statute of the latter place. (Chevrier v. Roberts, 6 Mont. 319, 12 P. 702; Doughty v. Funk, 15 Okl. 643, 84 P. 484; McKee v. Dodd, 152 Cal. 637, 93 P. 854.)

The cause of action arose eo instanti when default in payment occurred according to the terms of the promissory notes. ( Alspaugh v. Reid, 6 Idaho 226, 55 P. 300.)

The cause of action arose in Kansas and could not arise elsewhere. (Pomeroy on Remedial Rights, secs. 452, 453; Shillito Co. v. Richardson, 102 Ky. 51, 42 S.W. 847; Hiller v. Burlington & Mo. R. R. Co., 70 N.Y. 223; Omaha Nat. Bank v. Lindsay, 41 Wash. 531, 84 P. 11; Storey v. Thompson, 36 Ill.App. 370; McCann v. Randall, 147 Mass. 81, 9 Am. St. Rep. 666, 17 N.E. 75; Drake v. Found Treasure Min. Co., 53 F. 474.)

The words "return to the state," as used in sec. 4069, have been held by the courts of England and most of the states of this country to apply as well to persons who came into the state for the first time as to those who have been in the state before. (Ruggles v. Keeler, 3 John. 263, 3 Am. Dec. 482.)

The supreme court of California, in Palmer v. Shaw, 16 Cal. 96, adopted the same construction of that statute long before it was taken from that state into the Idaho statutes, and that construction has been followed ever since in California.

Cavanah & Blake, and W. E. Borah, for Respondent.

Under sec. 4079, Rev. Stat., when a party has resided in another state a sufficient length of time to bar the action in said state, suit cannot be maintained upon said cause of action in this state. The defendant has resided in Washington for nearly sixteen years. The courts were open, service could have been had, and the cause of action could have been brought at any time within the statutory period in that state. No action having been brought, the same was barred there, and therefore it is barred here; for that is the exact condition and state of facts which our statute was intended to cover. The language of the statute is plain and unambiguous and the courts have often construed the same. (Luce v. Clarke, 49 Minn. 356, 51 N.W. 1162; Powers Mercantile Co. v. Blethen, 91 Minn. 339, 97 N.W. 1056; Lewis v. Hyams, 26 Nev. 68, 99 Am. St. Rep. 677, 63 P. 126, 64 P. 817; McCormick v. Blanchard, 7 Ore. 232; Osgood v. Artt, 10 F. 365, 11 Biss. 160; Freundt v. Hahn, 24 Wash. 8, 85 Am. St. Rep. 939, 63 P. 1107; Wooley v. Yarnell, 142 Ill. 442, 32 N.E. 891; Strong v. Lewis, 204 Ill. 35, 68 N.E. 556.)

Sec. 4069 does not apply to the cause at bar. It applies only where a party within the state departs therefrom and the cause of action arises during his departure, or where, after the cause of action has arisen, he departs and returns. This section must be construed in connection with sec. 4079. ( Powers Mercantile Co. v. Blethen, 91 Minn. 339, 97 N.W. 1056; Snoddy v. Cage, 5 Tex. 106; McCormick v. Blanchard, 7 Ore. 232; Hyman v. Bayne, 83 Ill. 256; Wilson v. Daggett, 88 Tex. 375, 53 Am. St. Rep. 766, 31 S.W. 618.)

AILSHIE, C. J. Stewart, J., concurs. Sullivan, J., did not sit at the hearing and took no part in the decision.

OPINION

AILSHIE, C. J.

The question to be determined in this case is: Where a debtor executed a promissory note in the state of Kansas and agreed to pay the same at a specified time and place within that state, and who thereafter removed to the state of Washington and resided there until the bar of the statute of limitations of that state had run against the right of action on the contract, and the debtor thereafter came into the state of Idaho and was sued upon the obligation, can he here plead the bar of the statute of limitations of the state of Washington?

The trial court held that the plea of the statute of limitations of the state of Washington was good, and entered judgment in favor of the defendant. This appeal is from the judgment so made and entered. The transaction out of which this action arose and the circumstances involving the statute of limitations are briefly as follows:

On April 2, 1888, the defendant, Charles Theis, at Richfield, Kansas, executed and delivered to I. D. West his four promissory notes for the sum of $ 2,000 each, and therein promised and agreed to pay the same at the office of Ritter & Doubleday in the city of Columbus, state of Kansas. The plaintiff here is the widow of I. D. West, and executrix of his estate. The defendant, Theis, left Kansas after the maturity of two of these notes and before the maturity of the other two, and before the statute of limitations had run as against any of these obligations. He thereafter located in the state of Washington, where he resided continuously for a period of more than six years, which period is prescribed by the statutes of that state as the limit within which actions of this character must be commenced. He thereafter came into the state of Idaho, and this action was brought against him on May 10, 1906. The defendant answered, admitting the execution of the notes as alleged in the complaint, and pleaded the statute of limitations of the state of Washington as a bar to the action in this state under sec. 4079, Rev. Stat. of Idaho. The proper solution of this question must necessarily depend upon the construction to be placed on secs. 4069 and 4079 of the Rev. Stat. of this state. Those sections are as follows:

"Sec. 4069. 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."

"Sec. 4079. When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an...