
    (Greene County Common Pleas Court)
    January 1897.
    F. T. LINDSAY v. C. L. MAXWELL, ADMINISTRATOR etc. OF SARAH CUNEY DECEASED.
    Temporary absence of the debtor from the state, though extending over a period of several months, while retaining his domicile and usual place of residence within the state, is not within the provisions of section 4989 revised statutes and does not operate to extend the period within which an action must be brought.
   SMITH J.

During the trial a juror was by consent withdrawn and the cause submitted to the court. The petition contains two causes of action — the first is upon a promissory note, the second upon an account for board, medi cal services, etc.

Defendant denies the execution and delivery of the note, and denies the rendition of the services and the indebtedness set forth in the account. As a further defense to the cause of action upon the account, defendant pleads the statute of limitations. Plaintiff during the trial was granted leave to file an amendment to his reply setting up by way of avoidance that the defendant Sarah Ouney, during certain periods after the cause of action accrued, was absent from the state. It is claimed that such matter was not proper in a reply; that it should have been set forth in the petition. It is well settled that unless the statute of limitations is pleaded, the bar of the statute is waived, unless it appear on the face of the petition, and the question is raised upon demurrer.

In this case the petition was not demurred to. The first notice plaintiff had that the statute of limitations would be relied upon, was when defendant’s answer was filed. Plaintiff was not bound to anticipate that defendant would plead the bar of the statute, hence the plaintiff has the right by reply to plead new matter by way of avoidance.

The case Haymaker vs. Haymaker, 4 Ohio St., 272, though decided prior to the adoption of the civil code, is applicable. In that case the plaintiff was permitted by way of replication to the plea of the statute to plead a new promise.

The decedent, Sarah Cuney, was a married woman. For several years she had been living separate and apart from her husband Samuel Ouney, who was not a resident of Ohio, and had no fixed place of abode. She was a resi.lent of the city of Xenia from the early part of 1886 until her death, March 1,1892. From about March 1,, 1886 until October 1, 1888, she resided with plaintiff. During this period she made a visit with friends in Canada,and was absent from Xenia four months and fifteen days, from August 25, 1887, to January 8, 1888. After October 1888, having some months prior thereto purchased a dwelling house, she occupied the same until her death, in March 1892, during which time she made two visits to Washington, D. C., being absent on one occasion from September 1, 1890, to July 10, 1891, ten months and ten days, and a secotid time from October 1, 1891 to March 1, 1892, the date of her death.

Plaintiff’s account is for board, washing and nursing and medicine furnished and medical services rendered for a period of 115 weeks, between March 1, 1886, and October 1,1888. The absences of the decedent were intended to be temporary, her usual place of residence being with plaintiff during her first visit, and at her own dwelling house during the second and third visits. Defendant was appointed administrator September 15, 1894, and as such administrator allowed plaintiff’s claim September 21, 1894, but disallowed and rejected the same in February, 1895, upon notice from the probate judge, a requisition and undertaking having, been given as required by statute. This action was brought April 26, 1895.

Defendant was appointed administrator upon plaintiff’s application in Sept. 1894. The decisions are uniform in holding that the failure to appoint an administrator does not interrupt the running of the statute where the cause of the action accrued before the death of the debtor. The running of the statute is not interrupted by the death of the debtor. The creditor has the right to have an administrator appointed. In case of his failure to do so until his claim is barred, he is chargeable with his own laches.

Granger’s Adm’r v. Granger, 6 Ohio, 35; 13 Encyclopaedia, 737, 738 & Note: Angel on Limitations, section 56.

Section 4989, Revised Statutes, provides: “Tf when a cause of action accrues against a person he is out of the state or has absconded or conceals himself, the period of limitation for the commencement of the action should not begin to run until he comes into the state, or while he is so 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.”

The first clause of this section has been construed by the supreme court in Stanley v. Stanley, Adm’r, 47 Ohio St., 225.

But the second clause under which it is claimed that this action is barred, so far as it relates to the account for services, has not been construed by the supreme court, nor by any of the inferior courts in any re ported decision. There is a conflict in the decisions of other states in the construction of similar provisions as to absence after the cause of action accrues. ■

The question, then, is are mere temporary absences while retaining a legal residence and place of abode .within the state, are within the provision “if after the cause of action accrues he depart from the state * * * the time of his absence shall not be computed as any part of the period within which the action must be brought.”

The courts of several states have construed “absence” not to include temporary absence.

Temporary absence,though extending over a period of several months, but effecting no change in the legal domicile of the debtor, does not operate to extend the period of limitation, but are to be included in reckoning the time in which an action should be commenced againt him.

Langdon v. Dord, 6 Allen, 463; Collister vs. Hailey,, 6 Gray, 517; Hallett vs. Bassett, 100 Mas., 160.

Here the provision of the statute was “shall be absent from and reside out of the state.

In order to'prevent the running of the statute of limitations, the debtor’s absence from the state must be such that process cannot be so served upon him that the judgment will bind him personally. Quarles v. Bickford, 13 Atlantic (N. H.), 642.

In this case the court say: “Service may be made by leaving an attested copy of the writ or summons at the defendant’s abode.”

Where the defendant was absent from the state, but his domicile and usual place of residence were within the state,so that legal service could have been made by leaving copy there, the statute of limitations did not stop running against the claim on account of defendant’s absence. Gillman v. Cutts. 27 N. H., 348.

An absence from the state, though long continued, without evidence of abandonment of defenlnt’s home within it, will not prevent the running of the statute of limitations. Drew v. Drew, Maine, 389.

Here the statute provided that time be not counted during the time the defendant “shall be absent from and reside out of the tate.’

T In Vermont, where the statute provides that if the debtor be absent from and reside out of the state the time of such absence shall not be computed etc., it was held in Hockett v. Kendall,, 23 Ver. 272; that a debtor must be considered to be absent from home and reside out of the state within the meaning of the exception in the statute of limitations, when bis domicile within the state is so broken up that it would not be competent to serve process upon him by leaving a copy theie, and for that purpose there must be some place of abode which his family or effects exclusively maintain in his absence, and to which he may be expected soon or in some convenient time to return, so that a copy being left there and notice in fact proved, the plantiff may take a valid judgment.

To the same effect is Hall v. Nasmith, 28 Ver., 788; Rutland Marble Co. v. Bliss, 57 er., 21.

In Minnesota the provision of the statute is that if after the cause of action accrues the defendant departs and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action.

In Venable v. Paulding, 19 Minn., 488, it was held that the departure from and residence out of the state to which such statute refers,must be not merely temporary and occasional, but of such character and with such intent as to constitute a change of domicile, meaning by domicile in this connection the debtor’s home or place of abode.

In Kerwin v. Sabin, 50 Minn. 320, it was held under the same statute that defendant had not resided out of the state so as to have interrupted the running of the statute of limitations. The circumstances being that, having an established residence and home in Minnesota, he was elected to the United States Senate, and during the sessions of congress left his home in occupancy of servants, and taking his family to Washington kept house there in rented premises without intending to change his residene. In the intervals between the sessions of congress he returned to and occupied his home in Minnesota. The court say on page 323 “His former home continued to be ‘The house of his usual abode,’ and by the terms of our statute under the circumstances shown by the evidence, a summons might have been served by leaving a copy there and an action be thereby effectually commenced against him.”

In Connecticut the statute provided that in “computing the time limited in the several cases aforesaid, the time during which the party against whom there may be any such cause of action shall be without the state, shall be excluded from the computa tion. ”

In the case of Sage v. Hawley, 16 Conn. 106, where the defendant left his family and property and went out of the state at different times in two successive years to one of the southern states, where he remained each time for the period of about eight months for the purpose- of taking charge of a stock of goods and attending to the business thereof, intending at his departure and during his absence a temporary absence only and a speedy return to his residence in Connecticut, and without abandoning or intending to abandon his domicile there, it was held that the defendant was not without the state within the meaning of the statute of limitations.

The early statute of Iowa provided that if any person against whom there is or shall be a cause of action shall be out of this territory at the time of the cause of such action accruing, or at any time during which a suit might be sustained, then the person entitled to such action shall be at liberty to bring the same after his or their return to this territory, and the time of such person’s absence shall not be taken as a part of the time limited for bringing the action.

In the case of Penby v. Waterhouse, 1 Cole, Iowa Supreme Court, 497, it was held that the act did not mean a mere personal absence from the state when tho wife and family remained during such absence at his usual place of residence, so that service of process could there be made, but such .absence as entirely suspended the power of "a party plaintiff to obtain personal service on the defendant in eithei of the methods provided by law.

In that state the provision for service of a summons was either a personal service, or by leaving at defendant’s dwelling house or place of abode with some person of the family of fifteen years of age or upwards, and stating the contents to such person.

Ihe court say, page 500: “To our mind the object of this eighth section was that a plaintiff should not be barred of his action by a lapse of six years if his right to his remedy was suspended by the absence of the defendant. When that right was not suspended however, there is no reason why he should claim that time did not run. By the provision above referred to his right to proceed with his action and merge his demand into a judgment was just as perfect and complete when the service was made by copy left at the usual place of abode, as served by reading to the defendant. Where the family of the defendant remains at the usual place of abode and he is absent temporarily or on business, we do not think he is out of the state within the meaning of the said exception.”

Tn this case defendant was out of the state from May 7, 1850, to February 25.1853.

Later the statute of Iowa was changed,and the provision was that “the time during which the defendant is non-resident shall not be included in computing any of the periods of limitation above described.”

In Drake v. Stuart, 87 Iowa, 341, it was held that the absence of a debtor from the state for successive brief periods of time for purposes of business where there is no purpose to change the place of residence, does not constitute non-residence under said section. ’ ’

In Nebraska the statute is literally taken from the Ohio statute, and the manner of the service of a summons upon a defendant is the same as in this state.

In Blodgett v. Utley, 4 Nebraska, 25, it was held that the mere temporary absence of the debtor from the state when such debtor has a usual place of residence therein where service of summons can be had upon him, does not suspend the statute of limitations.

The court say, page 29: “It is clear, 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 the state, 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 this action? We think it was the intention of the legislature to give the creditor five full years to commence the action, and if during that period the right to proceed in our court to reduce the claim to judgment is suspended by reason of the absence or concealment of the debtor, the period of such absence shall not be computed as any part of the tjme within which an action may be brought. It is one of the grounds of attachment under the code that the debtor ‘so conceals himself that a summons cannot be served upon him, and it is evident that the reason of the suspension of the statute of limitations in case of concealment is because service of summons cannot be had upon the debtor in consequence thereof.”

In this case the absences from tbe state were numerous, and varied from three weeks to three months.

The court held that as service of a summons could have been had at any time at the usual place of residence of the defendant, the statute of limitations was not suspended during the periods he was out of the state.

This case was cited and approved in Omaha & Florence L. and T. Co. v. Parker, 33 Neb.. 776, where it was held that to prevent the running of the statute of limitations against a party who has removed from the state, the absence must be such as will prevent the bringing of an action against him during such absence. If there is no suspension of the right to bring and maintain a suit, the running of the statute will not be interrupted.

The courts of other states have given a strict construction to statutes providing that absence from the state suspends the running of the statute of limitations, and have held that temporary absences toll the statute.

In Kansas the statute is the same as the Ohio and Nebraska statute. In an early case of Lane v. Bank, 6 Kansas, 75, Lane was a United States Senator,and was absent form the state during the sessions of the senate, but retained a furnished house and usual place of residence within the state.

It was held that such absences suspended the running of the statute during such periods.

This case is followed in Hoggett v. Emerson, 8 Kansas, 262; Conlon v. Lamphear, 37 Kansas, 431.

These cases were followed in Bauseman Adm’r v. Blumb, 147 U. S. 647, in an action originally commenced in the Q. S. Court of Kansas, the statute of limitations of the, state, where the cause of action arose, being pleaded as a bar. But the court expressly held that it was bound in the construction of the statute of any state to follow the decision of the supreme court of such state.

In Kemp v. Bader, 6 S. W. Rep. (Tenn.) 126, a temporary absence of fifteen moaths was held to be included within the statute.

An early case in New York is to the same effect. Ruggies v. Keeler, 3 John, 263.

So also Wisconsin. Parker v. Kelly, 21. N W., 539, where the court construed “shall be out of the state, ” to include temporary absences, though during such times a summons might have been served at the usual place of abode.

Bennett v. Cook, 43 N. Y., does not support plaintiff’s claim. In that case the defendant resided in Jersey City, but did business in New York City having an office there ten hours in the day time of every business day. The construction related to the other clause of the statute, “presence within the state. ” The court, instead of giving a strict construction to the statute, held that if the stature run at all during the presence of a non-resident, such presence must in any view of the case, amount in the aggregate to six years to render the defense available.

The provisions of the clause of the statute of this state under consideration must be construed together. Three acts of the debtor after the cause of action accrues will toll the statute, viz. departing from the state, absconding, concealing himself.

That the words “abscond or conceal himself” should receive a strict construction will hardly be claimed. Suppose a debtor should conceal himself having a usual place of residence where a summons in an action could be served under the provisions of our statute, the mere fact of concealment not preventing the service of summons would not prevent the running of the statute.

This is the construction given the provision by the supreme court of Kansas in Hoggett v. Emerson, 8 Kansas, above cited, where it is held that “absconding or concealing as used in the statute,refers to such conduct only as prevents the service of process in this state.”

The object and purpose of the statute evidently is that the creditor shall have the full statutory time in which to commence an action. If by reason of the debtor’s de parture from the state, or his absconding or concealing himself, the creditor is prevented from commencing an action on his claim because of his inability to obtain service of process, then there is added to the statutory time the period during which his right to sue was suspended. But if at no time during the statutory period the right to sue ;s suspended, then there is no reason for an extension of time, because the creditor has had the benefit of the whole time. In Taylor et al. v. Thorn, Adm’r., 29 Ohio St., 569, where it^was held that the statute of limitations does not run against claims against a deceased debtor after they have been presented and allowed by the executor or administrator, the court say, page 573: “It is expressly provided by the statute prescribing limitations to civil actions that if a debtor after a cause of action accrues departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of the time within which the action must be brought. Here the statute ceases to run because of the difficulties in reaching the debtor. Statutes of limitations affect the remedy only. They do not extinguish the debt, nor affect its validity. They merely withhold from the owner thereof the right to employ remedial process for its collection, and where there is no right to such process for the statute to operate upon where the right to resort to the courts for the collection of the debt is taken away, the statute ought not and was not intended to apply. ”

The claim that the words “depart from the state” should be given a strict and literal construction, is not sustained by the construction given the first clause of this section, in Stanley v. Stanley, Adm’r, 47 Ohio St., 225.

Ihe court held that where a person is a non-resident of this state, and absent from it when a cause of action accrued against him in favor of another in this state, afterward and during the period of limitation occasionally comes into this state, such presence in the state will not set the statutes of limiations to running in his favor,although the plaintiff might at such times, by the exercise of ordinary diligence, have commenced an action against him.

The first clause “If when a cause of action accures against a person he is out of the state or has 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 so absconded or concealed,” was not in this case given a strict or literal construction The words “until he come into the state” were construed with reference to the other provisions'of the statute, and the object and purpose of the statute.

So also “depart from the state” should not be construed to mean a temporary absence where the debtor has a usual place of residence or abode where under our statute a copy of a summons may be left. If so, it would Include any absence from the state, and as the authorities agree that absences within the meaning of the statute may be accumulated and the entire time deducted, then mere temporary absences of one or two days at various times on business or pleasure, though the right to sue had at no time been suspended, could be accumulated and the statute suspended for the aggregate time of such various absences.

As plaintiff had the right at all times during the period of the defendant’s absence to commence an action and obtain service by leaving a copy at defendant’s usual place of residence, the finding is that the running of the statute of limitations was not suspended during such aosences. The preponderance of the evidence is with the plaintiff as to the execution and delivery of the note.

T. L¡. Magruder, for Plaintiff.

Little & Spencer, for Defendant.

Plaintiff is entitled to judgment for the amount due on the note, and for such part of the account for services rendered and board furnished within six years prior to September 21, 1894, when said account was allowed by said administrator.  