Van Deren v. Lory

Ellis, J.

The defendant in error brought an action in the Circuit Court for Dade County against F. O. Yan. Deren upon a judgment obtained against him by the former in Indiana on December 14, 1908. The defendant pleaded the statute of limitations; £ £ That the alleged cause of action did not accrue within seven years before this suit.” The plaintiff replied that the defendant “has not been a resident or within the jurisdiction of the State of Florida for a period of seven (7) years subsequent to the aceruel of the cause of action herein sued upon.”

The defendant demurred to the replication; the demurrer was overruled and judgment entered for the plaintiff, whereupon the defendant, Yan Deren, took writ of error.

The plea rested upon the statute of limitations, section 2939, Revised General Statutes of Florida, which in so far as it applies to this case, is as follows: “Actions other than those for the recovery of real property can only be commenced as follows: 1. Within Twenty Years. — An action upon a judgment or decree of a Court of record in the State of Florida, and an action upon any contract, obligation, or liability founded upon an instrument of writing under seal. “2. Within Seven Years. — An action upon a judgment or decree of any court of the United States, or of any State or Territory within the United States, or of any foreign country.”

The replication rested upon the provisions of paragraph 4 of section 2928 Revised General Statutes. That paragraph is as follows: “4. Absence of Defendant from the State. — If, when the cause of action shall accrue against a person, he is out of the State, the action may be commenced within the term herein limited after his return to the State; and if after the cause of action shall have accrued he depart from the State, the time of his absence shall not be part of the time limited for the commencement of this action.”

It is ably argued by conusel for the defendant in error that the statute of limitations, in so far as it applies to actions upon judgments obtained in another state, applies only to those cases in which the debtor has been a resident of this State for seven years. That the.words, in paragraph 4 of section 2928 Revised .General Statutes, “return to the State,” are the equivalent of “Come into the State” and that the words “absence” and “return” aré not confined in their application to those who have once been inhabitants but are equally applicable to those who have never before been in the State, to foreigners as well as citizens. That it is not a mere matter of the running of time from the date when the cause of action originated. That the two statutes read together show the purpose of the Legislature to have been that the seven year statute should not begin to run until the time when the Courts of this State had jurisdiction to adjudicate between the parties upon the particular cause of action.

There is considerable weight of authority in support of this view. The courts of many states, having statutes similar to ours, have so interpreted them. See Strong v. Lewis, 204 Ill. 35; 68 N. E. Rep. 556; Lawson v. Tripp, 34 Utah 28, 95 Pac. Rep. 520; Burrows v. French, 34 S. C. 165, 13 S. E. Rep. 355; 27 A. S. R. 811; West v. Theis,.15 Idaho 167, 96 Pac. Rep. 932, 128 A. S. R. 58, 17 L. R. A. (N. S.) 472; Mason v. Union Mills Paper Manufacturing Co., 81 Md. 446, 32 Atl. Rep. 311, 29 L. R. A. 273; Doughty v. Funk, 15 Okl. 643, 84 Pac. Rep. 484.

This court has held that the lex fori determines the time within which a cause of action shall be enforced. See Brown v. Case, 80 Fla. 703, 86 South. Rep. 684. But that rule is subject to the statutory modification in Florida prescribed by Section 2928, Revised General Statutes, paragraph 4 above quoted. This statute, as the title of the section indicates, works an extension in time of the limitations prescribed by Section 2939, Revised ' General Statutes, Chapter 7839, Acts of 1919, Laws of Florida, has no application to this ease. See 25 Cyc. 1238; 17 R. C. L. 692.

The demurrer to the replication was properly overruled; so the judgment is affirmed.

Taylor, C. J., and Browne, J., concur. Whitfield, P. J., and Terrell, J., dissent.