Lewis v. Hyams , 26 Nev. 68 ( 1900 )

The facts sufficiently appear in the opinion. This action was commenced on December 31, 1897, in the District Court of the First Judicial District in and for Storey County, against Edward Hyams and William Hyams upon a promissory note executed in the State of California, of which the following is a copy, to wit:

"San Francisco, March 1st, 1882. $5,000.00. Three months after date, without grace, we promise to pay to ourselves or order the sum of five thousand dollars, payable only in gold coin of the government of the United States, for value received, with interest in like gold coin at the rate of one (1) per cent per month from _________ until paid. Hyam Bros." Indorsed: "Hyam Bros."

The case was tried by the court sitting with a jury. The trial resulted in a judgment in favor of the plaintiff against defendant William Hyams for the sum of $14,475, together with interest on the sum of $5,000 thereof from the 17th day of May, 1899, till paid, at the rate of one per cent per month, together with the further sum of $1,021.50 taxed as costs. This appeal is taken by William Hyams from said judgment, and from the order of the trial court denying his motion for a new trial.

It appears that the plaintiff and Edward Hyams were, at the time of the execution of said promissory note, ever since have been, and now are, residents of the State of California; that said Edward has not been absent from the State of California, the place where the note was executed, altogether more than eighteen months since the execution of said note.

It also appears that William Hyams was at the time of the execution of said note, ever since has been, and now is, a resident of the State of New York, and that he has not been absent from said State of New York altogether more than eighteen months since the execution of said note.

It appears that at the time of the execution of said note Edward Hyams and William Hyams were copartners, and for a number of years prior thereto had been copartners, under the firm name of Hyams Bros., carrying on business as wholesale manufacturers and dealers in clothing, both at the City of San Francisco, State of California, and at the City of New York, State of New York. The manufacturing of clothing for the firm was carried on in the City of New York, and the business there was conducted by William Hyams, and the business of the sale of the clothing by Hyams Bros, was carried on in San Francisco, Cal., and conducted by Edward Hyams; and that Edward Hyams made, executed, and indorsed said note, and delivered the same to the plaintiff, for and in the name of said firm of Hyams Bros. In 1884 said copartnership was dissolved.

Among other defenses, the defendants pleaded Sections 32 and 33 of the statute of limitations of this state. Section 32 limits the time in which an action may be commenced on a contract, etc., made out of the state, to two years after a cause of action has accrued. (Comp. Laws, 3735.)

Section 33 provides: "When the cause of action has arisen in any other state or territory of the United States, or in a foreign country, and by the laws thereof an action there cannot be maintained against a person by reason of the lapse of time, no action shall be maintained against him in this state." (Comp. Laws, 3736.)

The defendants also pleaded certain laws of the State of California, in connection with said Section 33 of the Nevada statute, by which the period is limited to four years for commencing an action after it has accrued upon any contract, obligation, or liability founded upon an instrument in writing executed in that state, and also the laws of the State of New York, which limits the time to six years for commencing an action upon a contract, obligation, or liability, express or implied, except a judgment or sealed instrument.

It is contended by counsel for appellant that an action upon said note was barred as against him, long before the commencement of this action, by the laws of the State of New York, and that, therefore, by reason of the provisions of said Section 33 of our statute, no action can be maintained against him in this state. It is admitted by respondent's counsel that, if the cause of action against appellant arose in New York, this action cannot be maintained, provided said Section 33 has not been repealed.

Counsel in their brief say: "We admit that if respondent's cause of action against appellant arose in New York, and if Section 33 of our statute has not been repealed, appellant's motion for a non-suit should have been granted."

Appellant's motion for non-suit was granted as to Edward Hyams, it appearing that the cause of action against him arose in California, and by the laws of that state an action thereon had been barred there. It is contended on the part of respondent that the cause, of action against both of the defendants arose in the State of California, and that by reason of the non-residence of William Hyams, and his absence from that state, an action against him was not barred there, the place where the cause of action arose, and that, therefore, it is not barred here, under said Section 33.

Appellant's counsel contend that the cause of action against him arose in New York, and, an action thereon having been barred in that state, no action can be maintained against him in this state, as it is barred by said Section 33.

A "cause of action "is defined by Bouvier to be a right to bring an action. The cause of action is a claim which may be enforced. (Bucklin v. Ford, 5 Barb. 393;Halsey v. Reid, 4 Hun, 777.)

It is the right which a party has to institute and carry through an action. (Meyer v. Van Collem, 28 Barb. 230.)

The right to prosecute an action with effect. (Douglas v. Forrest, 4 Bing. 704; 15 E. C. L. 120.)

The term "cause of action "is synonymous with "right of action." (Am. Eng. Enc. Law, 46, note.)

The phrase in said Section 33, "when the cause of action has arisen," is the same, in the sense of the statute, as if the following expression had been used in its stead, "when a cause of action has accrued."

Did the right to bring an action on said note accrue in California against the appellant, a non-resident of that state, and absent therefrom? Could the claim of the respondent have been enforced in that state through the process issued by any court of that state? Did the respondent have the right to institute and carry through an action against the appellant in California? Could he have prosecuted an action against the appellant with effect in that State? We answer "No" to each of the above questions. No court in California could have acquired jurisdiction of the person of the appellant by any process it could have issued.

But the right to bring an action on said note by respondent against the appellant accrued in the State of New York, his place of residence; the place where any competent court of New York could, by its process, have acquired jurisdiction of his person; the place where the respondent's claim against the appellant could have been enforced; the place where the respondent had the right to institute and carry through an action against the appellant; and the place where the respondent could have prosecuted the action against the appellant with effect. We are of opinion that, when default was made in the payment of said note, the cause of action thereon against the appellant arose or accrued in the State of New York; that in such case as this the cause of action accrues in any state against the defendant where he may be found.

We are of opinion that Section 9 of the statute of 1867, which amends Section 33 of the statute of 1861 and incorporates it or makes it a part of the statute of 1867, is not repealed. But if it was repealed it would not avail the respondent. Section 508 of the civil practice act which was enacted in 1869 (Comp. Laws, 3603) provides: "When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of a citizen thereof who has held the cause of action from the time it accrued." The respondent is not a citizen of this state.

The appellant offered to prove the laws of New York to show that by said laws an action on said promissory note cannot be maintained there against the appellant by reason of the lapse of time. The court refused the offer, but from the admissions of respondent above given, we take it that he admits that the laws of that state are as appellant claims them to be.

We do not deem it necessary to pass upon the contention of the respective counsel with respect to the proper construction of Section 21 of our statute of limitations, for, if we are correct in our conclusion that the cause of action arose or accrued against the appellant in the State of New York, and we think we are, then an action thereon was barred there by reason of the lapse of time and it is, therefore, barred here The judgment and order appealed from are reversed.

UPON PETITION FOR REHEARING.