Parker v. Kelly , 61 Wis. 552 ( 1884 )

OjRTOiq J.

The note became due while the defendant, who was the master of a vessel, was absent from the state on his business, and he remained so absent nearly two years, while his family during that time resided in the city of Eacine, in this state; and he was so temporarily absent, intending to return to his family and the said place of his residence when not so employed out of the state. From the time of his return to this state six years had not elapsed when this suit was brought. The main and important question is, Had the statute of limitations run against the note? This must depend almost solely on the construction of our own statute, for there is, perhaps, no case outside of this state where the precise language of our own statute has been considered.

The statute (sec. 4231, E. S.) is: “If, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms respectively limited [six years] after such person shall return to or remove to this state.” The language of the statutes of Massachusetts and Hew York is substantially like that of our own'statute, with the exception of the words “ or remove to,” and this very difference may make the Hew York and Massachusetts authorities govern this court as to the construction of a statute evidently borrowed from those states, if it should appear that the words “or remove to” were inserted in our statute in order to make it verbally conform to the construction placed upon the statute with these words out of it by the courts of those states.

The setoff in the case of Ruggles v. Keeler, 3 Johns. 263, accrued when both the parties resided and were personally out of the state of New York, and six years had not run after the party charged therewith “ returned to ” (or removed to) the state. Chancellor Kent, in that case, said: “ But a proviso in the statute of Anne, and which we have adopted in our act of limitations, saves the operation of the statute if the party shall be ‘ out of the state ’ at the time the cause of action arises against him, and the statute does not begin to run until ‘after the return’ of the defendant. Whether the defendant be a resident of this state and only absent for a time, or whether he resides altogether out of the state, is immaterial. He is equally within the proviso.” He. then cites decisions on English statutes which construe the word “ return ” to embrace Englishmen temporarily absent, and foreigners who reside always abroad and come into England.

The language in the Massachusetts statute, “ until his return within the state,” was construed to embrace as well persons who had never previously been within the commonwealth, as those who were residents therein, and were out temporarily, and return. Milton v. Babson, 6 Allen, 322. Chief Justice Bigelow admits that the language is equivocal and doubtful, but construes it, under the rule verba intentioni debent inservire, as intended to embrace nonresidents, although the word “ return ” is inapt as to them.

Such, we understand, has always been the construction of this statute in those states, and the supreme court of the territory, in 1842, cited the cases of those states to sustain a similar construction of our own statute, in Brown v. Bicknell, 1 Pin. 226. The revisers, in order to make the statute read as it has so been construed, and supply the defect, inserted the words “ or remove to,” so as to clearly embrace nonresidents. See Revisers’ Notes. By this amendment all chance or right to place any other construction upon this part of the section than the language itself clearly imports, is foreclosed. Whether the full or partial remedies of the law are or are not suspended by a resident of this state being temporarily out of the state, cannot be considered in giving effect to this plain and unambiguous language; for it is evident, from the above authorities and the amendment, that they were not considered by the legislature. The case is directly and clearly within the statute, for the defendant resided in this state, was oiot of it when the cause of action accrued, and returned into it some two years thereafter. While so out of the state the statute did not run against the note.

The late case of Whitcomb v. Keator, 59 Wis. 609, is cited by the learned counsel of the appellant as being in conflict with this construction of the first clause of the section. , But it clearly is not. In that case the defendant was a resident and in the state when the cause of action accrued and the statute began to run. He then removed to and became a resident of the state of Illinois, and remained such resident for twenty years, and ‘then removed or returned to this state. In that interval, however, he was several times in this state temporarily, and the question was whether such a return to the state caused the statute again to run, and it was held that it did not, but that he must have been in this state so openly and publicly ¿hat the creditor might cause process to be served upon him; It depended upon the character of his return to the state whether the statute would begin again to run. It was a construction of the act of the defendant in view of the statute, rather than the construction of the statute. It was the last clause of the section only that was considered or involved in that case, but the chief justice, incidentally in the opinion, by way of argument and illustration, places precisely the same construction on the first clause as above established, and cites some of the above authorities to sustain it. It is useless to consider cases in states which have not our statute in language, or authorities elsewhere in apparent conflict with this construction. To place any other construction upon the statute, an interpolation of .other words would be necessary. “If he shall be out of this state,” must have the qualifying words, “and reside out of the state,” or “so that the process cannot be served upon him,” to give the words of .the statute the meaning contended for by the counsel of the appellant. This would be legislation and not construction. This disposes of the motion for a nonsuit and the motion for the direction of a verdict for the defendant.

The answer put in issue the ownership of the note by the plaintiff, and the plaintiff proved such ownership by assignment. The defendant offered no proof on the subject, but when the plaintiff and one of his witnesses had testified in rebuttal to the testimony of the defendant as to certain defenses to the note, his counsel asked questions upon cross-examination tending to show that the plaintiff did not own the note, but was seeking to collect it for and by collusion with others, and such questions were objected to as not being proper cross-examination, and the objection was sustained, and, we think, properly, because the defendant had not offered such. evidence affirmatively when the case was with him. It was certainly discretionary with the court to allow such proof afterwards, and the plaintiff had a right to object to its being made by cross-examination of witnesses testifying exclusively as to other matters.

' The exception to the refusal of the court to strike out certain testimony of the plaintiff on recross-examination was captious. The plaintiff testified that there was some indebtedness to Heck, the payee of the note, outstanding, other than that included in the bill of sale which secured the note in controversy; and he gave other testimony as to what indebtedness the bill of sale was intended to secure, without objection, and then testified as follows: “ I understood there was considerable account between him [the defendant] and ITeck that was not settled.” When he stated that he understood that from Heck, the defendant’s counsel asked that such testimony be stricken out. The court ordered that it be stricken out. The counsel then said: “I do not mean the last answer. I mean all the testimony in regard to the other matter.” As to that other matter, the plaintiff had testified that he obtained his information from the defendant. The court refused to strike out such evidence, and to this refusal the counsel excepted. This exception is in the record, and insisted upon in the argument here, and must be noticed and disposed of, even at the expense of considerable space in this opinion, baseless as it is. The record is somewhat confused, but, as I understand it, this very matter was inquired about by the counsel of the defendant on the first cross-examination, and this inquiry was only in rebuttal; but, whether so or not, the court was clearly right in its ruling.

Another exception equally untenable was to the refusal of the court to allow the defendant’s right to open and close the case because he had the affirmative of the issue. But he had not the affirmative, for he had put in issue the ownership of the note, and the plaintiff was required to and did prove its ownership. If his right had been clear it was no error, for it does not appear that he was prejudiced by the ruling, and it was at most discretionary, and there was no abuse of that discretion. Second Ward Savings Bank v. Shakman, 30 Wis. 333.

We can find no error in the record.

By the Gourt.— The judgment of the circuit court is affirmed.