Simon v. Wilnes , 97 Colo. 78 ( 1935 )

Mr. Justice Campbell

delivered the opinion of the court.

This action by the plaintiff Soran Wilnes against the defendant Lincoln Gr. Simon was to recover judgment on Simon’s promissory note to plaintiff of date January 20, 1922, for the sum of $3,000, payable six months after date at Sidney, Nebraska, where the note was made and delivered to plaintiff. The complaint charges the necessary allegations in snch cases as to the failure of payment by the defendant of the note, and specifically charges that before the due date thereof, as extended, defendant concealed himself and absented himself and absconded from the state of Nebraska so that process of law could not be served upon him, and that for more than nine years his whereabouts have been unknown and that, until about the time this action was brought, the plaintiff had not and could not obtain knowledge or information as to his residence.

To this complaint defendant filed his answer and an “amendment to answer.” In the former he admits execution and nonpayment of the note, makes a code denial as to plaintiff’s ownership thereof, seeks to explain his removal from Nebraska and gives reasons for frequent changes thereafter in his residence, says that the alleged cause of action in plaintiff’s complaint did not accrue within six years next before the commencement of the action, and plaintiff’s right of action on the note is thereby barred by the pertinent statute of limitations of Colorado. In a second defense of his answer defendant again pleads the statute of limitations of Colorado and the pertinent statute of limitations of Nebraska as a bar to the pending action in Colorado. In a third defense he pleads insufficiency of facts in the complaint to constitute a cause of action. Plaintiff’s replication to the answer and amendment thereto was a denial of new matter therein. The plaintiff first moved for judgment on the pleadings, which motion was denied, as was defendant’s motion to strike certain allegations in plaintiff’s pleadings. Thereafter the defendant moved for judgment on the pleadings, which the court denied. Defendant thereafter filed an “amendment to answer” in which he pleads as a bar to plaintiff’s action section 6408 of the 1921 Compiled Laws of Colorado. This section reads: “It shall be lawful for any person against whom an action shall be commenced in any court of this state, wherein the cause of action accrued without this state, upon a contract or agreement expressed or implied, or upon a sealed instrument in writing, or upon a judgment or decree rendered in any court without this state, more than six years before the commencement of the action in this state, to plead the same in bar of the action in this state; Provided, That if said judgment or decree rendered without this state be based upon a cause of action which had accrued more than six years prior to the commencement of the action on such judgment or decree in this state, and the said judgment or decree had been rendered without this state more than three months prior to the bringing of such action thereon in this state, it shall be lawful for any person against whom any-action or [on] such judgment or decree shall be brought to plead the same in bar thereof.”

Upon the issues thus made, trial was, by agreement of the parties, to the court without a jury, whose findings upon the issues of fact were in favor of plaintiff and judgment accordingly was rendered for him and against the defendant in the sum of $6,375 and costs.

In his assignments of error the defendant specifies twenty-five separate errors of the trial court in its various rulings. Upon this reviów each and every of the twenty-five alleged errors have received no consideration whatever by defendant and no point is made by him upon any of them. His only reliance for reversal, as repeatedly stated in his brief, is that the plaintiff’s alleged cause of action is barred by section 6408, supra. The defendant says that section 6408, supra, should be by this court construed to read: “It shall be lawful for any per-' son, against whom an action shall be commenced in any court of this state wherein the cause of action accrued (arose) without this state, upon a contract or agreement expressed or implied, * * * more than six years before the commencement of the action in this state, to plead the same in bar of the action in this state. ’ ’

It has been a difficult task to determine just what idea the defendant intends to convey by the language he has employed in his pleadings' and in his briefs. In his original assignments of error he alleges in twenty-five separate paragraphs alleged errors of the trial court. Since, however, in his briefs in this court the defendant has not, as already stated, discussed a single one of these assignments, we shall neither comment nor pass upon them. The only error, as already indicated, upon which the defendant relies for reversal, and what he himself says is his only reliance, is that the trial court did not construe section 6408, supra, in accordance with his notion of its meaning. The defendant repeatedly states in his briefs that he relies for reversal solely upon the refusal of the trial court to put upon section 6408, supra, the meaning which he himself says it bears. The trial court, in passing’ upon the contentions of the defendant at the trial below, gave a complete and satisfactory answer thereto. In passing upon defendant’s motion, upon which he relied for a dismissal of the action against him, the trial court said: “Counsel for the defendant relies, in support of his motion [the motion being for a directed verdict in favor of the defendant], upon Section 6408 of the Statutes of Colorado, ’ ’ above quoted. The court further said: “The Court construes this statute to mean that if a plaintiff’s right to bring an action in another state than that of Colorado has elapsed more than six years prior to the time that the action is started in this state, thereupon this statute is effective and would bar prosecution of that action in this state; but under the admitted facts in evidence in this case, this cause of action was not and is not barred in the State of Nebraska at the present time, or at the time this case was started in Colorado, by the statute of limitations of Nebraska, because of the admitted absence of the defendant from the State of Nebraska continuously since August 1, 1922; and for that reason the Court is of the opinion that this section of the Colorado statute does not affect the situation'here; that the cause of action is not barred in Nebraska and is not barred in Colorado, and therefore the motion, as indicated by the Court, for a nonsuit will be denied.”

Thereupon the trial court said that under the evidence and admitted facts before the court, the defendant having-rested on his motion for nonsuit, and refusing to offer any evidence, the court is of the opinion that the uncontradicted evidence of plaintiff justifies a verdict for him. And thereupon the court granted the motion of plaintiff for a judgment for a directed verdict in the sum of $6,375, the amount due on the note, against the defendant in favor of plaintiff. The trial court construed our section 6408, C. L. 1921, upon which the defendant solely relies, to mean — and we think rightly so — that if a plaintiff’s right to bring an action in another state than that of Colorado has elapsed more than sis years prior to the time that the action is started in this state, thereupon this statute is effective and would bar prosecution of that action in this state. The trial court further said and found that the cause of action set up in the complaint in this action is not barred in Nebraska and is not barred in Colorado. We say that section 6417 of our Compiled Laws requires the construction of said section 6408 here given.

After the printed briefs in this cause' were filed plaintiff in error Simon filed a motion in which he asked to have stricken certain paragraphs of the answer brief of defendant in error Wilnes on the alleged ground that the same were false and scurrilous and were inserted in the brief of defendant in error for the purpose of besmirching- plaintiff in error. These paragraphs, objectionable to the latter, might have been omitted. They are characterizations of the conduct of Simon, based upon his movements tending- to show that he was attempting to avoid service of process. We deferred decision upon this motion at the time it was filed and the parties were informed that it would be considered and determined when the cause was reached for final decision on the merits. These alleged false statements of Wilnes have not influenced this court in its decision on the merits of the cause on this the final determination. The motion to strike is denied. The judgment should be, and it is, affirmed.

Mr. Justice Burke concurs.

Mr. Chief Justice Butler and Mr. Justice Hilliard concur specially.

Mr. Justice Bouck, Mr. Justice Holland and Mr. Justice Young dissent.