Westhoven v. Snyder

• Decision Date: 19 December 1973
• Citation: 318 N.E.2d 167,40 Ohio App.2d 91
• Parties: , 69 O.O.2d 65 WESTHOVEN, Appellant, v. SNYDER et al., Appellees. *
• Court: Ohio Court of Appeals

Page 91

40 Ohio App.2d 91

318 N.E.2d 167, 69 O.O.2d 65

WESTHOVEN, Appellant, v. SNYDER et al., Appellees. ^*

Court of Appeals of Ohio, Third District, Henry County.

Dec. 19, 1973.

Syllabus by the Court

The fifteen year statute of limitation on actions upon contracts in writing (R.C. 2305.15) is not tolled by the tacking together of short periods of absence from the state involved in vacation trips when an Ohio residence is maintained at all times during such fifteen year period where residence service may be had and no permanent residence is elsewhere established.

Rice, Pugh, Plassman, Rupp & Lauber, Archbold, for appellant.

Marlowe Witt, Napoleon, for appellees.

COLE, Judge.

There is a single issue posed by the facts of this case and by the single assignment of error: Is the 15 year statute of limitation on actions upon contracts in writing tolled by the tacking together of short periods of absence from the state involved in vacation trips? The court below held that it is not. We concur with the reasoning of the trial court and affirm its decision.

The action herein involved was a suit for the payment of a note. It was alleged that over 15 years had expired since the date of the last payment thereon. Upon a motion to dismiss for failure to state a cause of action (which by virtue of movant's reliance upon a deposition became part of the motion by stipulation and turned that motion into one for summary judgment pursuant to Civil Rule 12(B), the plaintiff, appellant herein, countered by presenting deposition evidence tending to establish that both makers of the note had been periodically absent from the state for periods of 10 days to two months each year on vacation trips and tending to establish that these periods of absence were sufficient to toll the statute of limitation for a period long enough to make the filing of the petition timely. In the absence of a tolling of the statute, the petition or complaint was untimely filed and the defendants, appellees herein, are entitled to judgment.

The sole question therefore presented for consideration is whether these brief periodic vacation periods toll the statute.

R.C. 2305.15, in part, reads as follows:

'* * * After the cause of action accrues if he (the defendant) departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.'

This section must be placed in context with R.C. 2305.03, et seq. The obvious intent of the legislature is to provide fixed periods within which certain actions may be brought after the cause of action accrues. Where service may not be had on the defendant, however, the running of time would unfairly permit the defendant to avoid liability. Thus, if service cannot be had because he leaves the jurisdiction or because he conceals himself, that act should not be permitted to enable him to avoid liability. Where, however, he is subject to residence service at all times within the period, the statute is no longer needed. The plaintiff may at all times within the statutory period obtain service sufficient to enable a court to render a personal judgment against the defendant with full authority to proceed to any of the appropriate methods of execution to enforce that judgment. To hold that brief temporary absences would extend this time would, in effect, permit the plaintiff to have it within his power to at any time obtain residence service and a personal judgment during the base period provided, and also during the extended period, a complete perversion of the statutory purpose. Instead of fairly protecting the plaintiff's right to have effective legal action during the entire period, it actually extends that right for a longer period. We do not believe the legislature intended the inequitable operation which would result from holding that termporary absences while maintaining a residence constituted such a departure as to toll the operation of the statute. A salesman traveling in...