Blodgett v. Utley , 4 Neb. 25 ( 1875 )

Maxwell, J.

The agreed statement of facts on which this case was submitted sets forth that “during each and every absence the defendant had a usual place of residence in different places in Nebraska, where service of summons could be had on him.”

Section twenty of the code of civil procedure provides as follows: “If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is 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.” Section sixty-nine provides the mode of service of summons. “The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence at any time before the return day.”

It is clear that if we are to be governed by the strict literal language of the statute, that the several periods of absence of the plaintiff in error from the state, must be deducted from the five years and ten months during which he has resided in this state, in which case the action is not barred. Do the words “depart from the state,” as used in section twenty, mean a mere temporary absence from the state while the debtor’s usual place of residence is here, or are they intended to apply to such an absence from the state as entirely suspends the power of the plaintiff to commence his action? ¥e think it was the intention of the legislature to give the creditor five full years to commence his action, and if during that period, the right to proceed in our courts to reduce the claim to judgment is suspended by reason of the absence or concealment of the debtor, the period of such absence should not be computed as any part of the time within which an action may be brought. It is one of the grounds for attachment under our code that the debt- or “so conceals himself that summons cannot be served •upon him,” and it is evident that the reason of suspension of the statute of limitations, in case of concealment, is because service of summons cannot be had on the debt- or in consequence thereof.

In the case of Sage v. Hawley, 16 Conn., 106, the court, in construing the words “without the state,” say: “considering this provision as being designed to protect the rights of the plaintiff, in those cases where it was not practicable for him to enforce them by suit, in consequence of the absence of the defendant from the 'state, its justice and propriety are most obvious. But it is not necessary, nor does justice seem to require, that we should extend it by construction, so far as to include in tlie computation of the time limited for bringing suits, those periods when the defendant was personally out of the state, but during which the plaintiff might notwithstanding have commenced a personal action against him, by the judgment in which he would be conclusively bound.” Penley v. Waterhouse, 1 Clarke, 498.

The case of Lane v. The National Bank of the Metropolis, 6 Kan., 75, is cited by defendant in error as holding that mere absence from the state is sufficient to prevent the statute from ' running. From the agreed statement of facts in that case “that said J. H. lane resided in Lawrence, Kansas, where he kept and maintained a furnished house; that he was a member of the United States Senate; that he was in Washington with his wife and other members of his family from November, 1865, until the middle of June, 1866,” it is evident that Lawrence was not his usual place of residence during his stay in Washington. The words “usual place of residence” mean the place of abode at the time of service. Gadsen v. Johnson, 1 Nott & McCord, 89. If the party is out of the state for a temporary purpose merely, then his residence is still here and service may be made at his usual place of residence. Frear v. Cruikshanks, 3 McCord, 84.

It appears from the agreed statement of facts, that service of summons could at all times, since the 15th day of January, 1868, have been had on the plaintiff in error at his usual place of residence in this state. So far as appears there has been no suspension of the right of the defendant in error to proceed in our courts and reduce his claim to judgment; and the right to merge his demand in judgment not having been suspended, the court erred in deducting the time the plaintiff in error was absent temporarily from this state. The judgment of tlie district court is therefore reversed and cause remanded.

Judgment Reversed.

Gantt, J, concurred. Lake, Ch. J., before whom tbe cause was tried in tbe district court, said that be fully-concurred in tbe opinion of tlie court upon tbe record as it appeared bere, but that tbe evidence was entirely different on tbe trial below, from that set forth in tbe agreed state of facts submitted to this court.