Whitman v. Mcclure

• Decision Date: 31 January 1874
• Citation: 51 Ga. 590
• Parties: William L. Whitman, plaintiff in error. v. William McClure et al., defendants in error.
• Court: Georgia Supreme Court

51 Ga. 590

William L. Whitman, plaintiff in error. v. William McClure et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Attachment. Statute of limitations. Before Judge Hopkins. Catoosa Superior Court. October Adjourned Term, 1873.

William M. Whitman commenced suit by attachment against William McClure and James McClure, on an account for $896 84, the first item of which was dated September 7th, 1865, and the last item November 13th, 1866, with two credits thereon, the first of $1 00, dated February 3d, 1866, and the second of $6 25, of date March 9th, 1867. The claim is consolidated on the last page of the bill of particulars to the declaration attached, as follows:

                --------------------------------------------------------
                |''William and James McClure,|                         |
                |----------------------------|-------------------------|
                |                            |To Whitman & Yarnell. Dr.|
                --------------------------------------------------------
                

                -------------------------------------------------------------------
                |"1872.|July 22d.|                                       |$498 04 |
                |------|---------|---------------------------------------|--------|
                |''    |'' ''    |                                       |263 80  |
                |------|---------|---------------------------------------|--------|
                |''    |'' ''    |Profit in saw-mill partnership         |100 00  |
                |------|---------|---------------------------------------|--------|
                |''    |'' ''    |Interest on same from January 1st, 1867|35 00   |
                |------|---------|---------------------------------------|--------|
                |      |         |                                       |$896 84"|
                -------------------------------------------------------------------
                

The attachment was levied on January 22d, 1873, by serving process of garnishment on Benjamin F. Clark. The defendants appeared and pleaded the statute of limitations. *The evidence presented the following case:

In July or August, 1865, the firm of Whitman & Yarnell, of which the plaintiff was a partner, contracted with the defendants to build a saw-mill on the land of the latter. Plaintiff's firm was to advance the money for the aforesaid purpose, for the use of which they were to have the profits of the mill for the first twelve months after its completion. The principal was to be repaid out of the first funds from the mill going to the defendants. About the time work was commenced, one of the defendants stated to plaintiff's firm that it would be necessary for them to get some accommodation from the store for their families during the erection of the mill. Under these circumstances the account sued on was contracted. In March, 1871, the plaintiff bought out Yarnell's interest in the store, together with all the books, notes and accounts, including the one sued on. William McClure moved to Chattanooga, in the state of Tennessee, in the latter part of the year 1869, or first of 1870. James McClure moved to the same place on November 1st, 1870. Neither have since resided in the state of Georgia.

The court charged the jury as follows: "If there was no special contract when the debt should become due, and if the account was a contiguous and entire transaction, it would then become due on the date of the last item, and the statute of limitations would run from the date it became due, and if the defendants were then resident citizens of this state, and they removed from this state and became resident citizens of another state, and did not return to this state to reside, and the suit was not brought within four years from the date of the last item charged in the account, then the plaintiff would not be entitled to recover. The defendants' removing from the state after the statute had commenced to run, and not returning to reside in the state, did not suspend the running of the statute, and the accounts would be barred if four years elapsed."

The jury returned a verdict in accordance with the above instructions. A motion for a new trial was made on account *of error in the charge. The motion was overruled, and the plaintiff excepted.

A. T. Hackett; W. H. Payne; J. A. W. Johnson, by R. J. McCamy, for plaintiff in error.

E. M. Dodson, for defendants.

Trippe, Judge.

Section 2929, Code, provides, "if the defendant in any of the cases herein named shall remove from this state, the time of his absence from the state, and until he returns to reside, shall not be counted or estimated in his favor." The court below, in the charge to the jury, and in his decision on the motion for a new trial, construed this section to mean that the defendant must not only have removed from the state, but must also have returned to reside in the state before the action was commenced, else the plaintiff could not avail himself of the exception to the statute, and there was no suspension; that is, there must be both a removal and a return to reside, to disable the defendant from counting the time of the absence in his favor. Whether the court was right...