
    Stanley v. Stanley, Admr. et al.
    
      Statute of Limitations — Absence from state — Occasional presence in — Construction of § 4989, Revised Statutes.
    
    1. Where a person, who is a non-resident of this state and absent from it when a cause of action accrues against him in favor of another in this . state, afterward, and during the period of the limitation, occasionally comes into this state, such presence in the state will not set the statute .of limitations to running in his favor, although the plaintiff might, at such times, by the exercise of ordinary diligence, have commenced an action against him.
    2. Under the provisions of section 4989, Revised Statutes, presence of the defendant in the state, for the full period of the time limited for bringing an action, either continuously or in the aggregate, is necessary to constitute a bar of the action-.
    (Decided March 25, 1890.)
    Error to the Circuit Court of Washington county.
    On January 6,1881, Joseph F. Stanley commenced suit in the Court of Common Pleas of Washington county against the administrator of Timothy Stanley, deceased, and his heirs, the claim having been disallowed by the direction of the latter.
    The petition contained a number of causes of action, eight of which accrued in the years 1866 and 1867, and would have been barred but for the following averments' contained in the petition:
    “ That when the cause of actions accrued to this plaintiff, on each and every of said eight counts set forth in this plaintiff’s petition against the said Timothy T. Stanley, the said Timothy T. Stanley was absent from the county of Washington, and absent from the state of Ohio; that he then resided in the state of West Virginia, and so remained absent continuously from the state of Ohio before the accruing of the cause of action in this petition in favor of the plaintiff and against the said Timothy T. Stanley, until his death in the state of West Virginia, on or about the 16th of February, 1878.”
    This the defendant sought to avoid by the following answer:
    “ 2. They admit that at the time the causes of action set up in the 1st, 2d, 3d, 4th, 5th, 6th, 7th and 8th counts in the petition are said to have accrued to plaintiff, said Timothy T. Stanley was absent from Washington county, and absent from the state of Ohio, and that he then resided in the state of West Virginia, but these defendants deny that he so remained absent continuously from the state of Ohio before the accruing of said cause of action until his death. That they admit that on August 1, 1866, said Timothy T. Stanley departed this state, and went to the state of W est Virginia; but they deny that he remained continuously in said state of West Virginia until his death, and these defendants aver that after said August 1, 1866, and after the causes of action set up in the 1st, 2d, 3d, 4th, 5th, 6th, 7th and 8th counts of the petition herein, are said to have accrued to plaintiff, and more than six years prior to the presentation of the claim in the petition set up by the plaintiff to said administrator, said Timothy T. Stanley came into said state of Ohio, openly and notoriously, and became subject to the process of the courts of said state, all of which plaintiff at the time well knew. And these defendants further say that during said period of time said plaintiff resided in said Washington county, and state of Ohio; that during said period of time said Timothy T. Stanley came frequently into said Washington county, and remained several days therein, ■with the knowledge of plaintiff; that during said pei’iod of time said Timothy T. Stanley was at the house of plaintiff in said Washington county for several days with the knowledge of plaintiff, and was subject to tbe process of tbe courts of said county.”
    The plaintiff demurred to this answer on the ground that it did not state facts sufficient to constitute a defence to the action. The demurrer was overruled and exception taken. The plaintiff then filed a reply controverting the averments. The case was tried to a jury upon the various issues of fact made by the pleadings, and a verdict rendered for the defendants. On the trial the court charged the jury as follows :
    “ If the jury find from the evidence upon the issue made in the pleadings upon the question of the statute of limitation, that after the accruing of the cause of action set up in the petition, or before the accruing of all of said causes of action, the decedent, Timothy T. Stanley, removed to the state of West Virginia about August, 1866, and that he remained there continuously until his death, about the month of November, 1878, then the statute of limitation would not run against said causes of action set up in said petition, and be no bar to a recovery by the plaintiff in this action.
    But if the jury find that during said time, from August, 1866, until the date of his death, about November, 1878, the said. Timothy T. Stanley returned frequently, openly, occasionally and notoriously to the county of Washington, in the state of Ohio, the place where the contracts in the petition were made, and the place where said plaintiff during said times resided, and the said plaintiff did know, or would have known by ordinary diligence, of the frequent presence in said Washington county and state of Ohio of said decedent, Timothy T. Stanley, and could have, by ordinary diligence, obtained service of summons in said county of Washington, and state of Ohio, upon said Timothy T. Stanley, in an action founded upon the causes of action set up in the petition, then the statute of limitation would run against said demands mentioned in said petition, and the same would be a bar to a recovery by the plaintiff in this action.”
    This was excepted to at the time, and, with the ruling on the demurrer, was made the ground of a motion for a new trial. The motion was overruled, and judgment entered upon the verdict, to reverse which this proceeding in error, is prosecuted.
    
      S. S. Knowles, for plaintiff in error.
    The law of limitations is governed, and is to be controlled' by. the legislation of the state, and the judicial construction' of such legislation at the time of the transaction. Rev. Stat., sec. 49892 S. & C. 950 and note; 14 Ohio, 204; 109 Mass., 40; 10 Shep. M. Me. Rep., 156, and Statute- of Maine, sec., 99; 59 N. H. 151; Wood on Lim., sec. 247 and cases there cited; 43 Miss., 212; 6 Kan., 74; 45 Dana, 337; 118 Mass., 337; 17 Mass., 180; Davis v. Field, 56 Vt. 426.
    
      A. D. Follett, for defendant in error.
    The statute begins to run when the debtor comes into the state. The language of the statute is plain and simple. There is no occasion for refinement of construction. It simply means what it says. Some states require residence — some require the debtor to be in the state the statutory period after coming into it. None of these requirements appear in our statute. Angell on Lim., sec. 206; Waite’s A. & D., Vol. 7, pp. 276, 277; 109 Mass., 140; Fowler v. Hunt, 10 Johns, 464; Cole v. Jessup, 10 N. Y. 103.
   Minshall, C. J.

The question in this case arises upon the defense in the answer to which the demurrer was sustained. The defense was intended to avoid the effect of .the averments in the petition as to the absence of the decedent from the state at the time the plaintiff’s causes of action accrued, and his continued absence thereafter until the time of- his death. The question requires a construction of the following section of the Revised Statutes, relating to the statute of limitations:

“ Sec. 4989. If, when a cause of action accrues 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 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.”

It is necessary to observe that it is not claimed in the defense to which the demurrer was overruled, that the causes of action to which it was pleaded, or any of them, arose in the state of West Virginia, the residence of the deceased, or were to be performed there. Such averments were made as separate grounds of defense, and were met by denials. The gist of the defense to which the demurrer was interposed, is that, although the decedent resided in the state of West Virginia when the causes of action accrued, yet he frequently came into this state, and within the jurisdiction of the courts of the county in which the plaintiff resided, after the causes of action accrued, and more than six years before the action was commenced; and that these occasions were attended with such circumstances of notoriety, that the plaintiff could, with the exercise of ordinary diligence, have obtained service upon him. The defense admits that the deceased was a non-resident of the state at the time the causes of action accrued; but it is claimed, that if, at any time thereafter, he came into the state so that the plaintiff might have commenced his action, the statute began to run, and continued to do so, though he may have departed the state the next day, and have remained out of it the residue of his life.

We do not so construe this statute. Where a defendant is out of the state when a cause of action accrues against him, our construction is, that the statute does not begin to run until he comes into the state. It then begins to run against him, and if he remain in the state, it will be barred in the period limited, from that time. But if, after he comes into the state, he again depart from it, the running of the statute is suspended during his absence. It is not necessary that we should determine in this case, whether absence upon business — the defendant continuing a resident of the state— is sufficient, or whether it must be limited to absence as a non-resident of the state, for it is admitted that the decedent was a resident of the state of West Virginia, and his absence* therefore, referable to that fact.

The design of the statute is to give to the plaintiff the full period of the limitation, in available time, for the commencement of his action; so that, in ascertaining this period, the time the defendant is out of the state, is not computed as any part of the time given him in which to commence his action. This is in close analogy to the Roman law which, in like cases, counted only the available days, tempus utile, on which activity was possible, in ascertaining whether an action was barred by limitation or not; and days on which the action was hindered by the absence of the defendant, were excluded from the computation of the term. Poste’s Gaius, 255.

This is the only rational construction that can be placed on the statute, and makes it consistent with itself. Thus in the second clause it is provided, in so many words, that if after the cause of action accrues, the defendant 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.” It could not then have been intended by the legislature that, where a defendant was absent from the state at the time a cause of action accrued, his return to the state would not only set the statute to running in his favor, but that it would continue to run, whether he remained in the state or not.

The first clause provides for the case where the defendant is absent from the state when the cause of action accrues; the second for the case where he departs from the state after it has accrued. In the first, the statute begins to run when he comes into the state; in the second, it ceases to run, and is suspended, until he returns to the state. The purpose, then, of the statute is perfectly plain: Presence of the defendant within the state, so that he may be sued, avails in his favor; absence from the state, whether at the accruing of the action or afterwards, suspends the running of the statute.

This is the first time the precise question seems to have arisen in this court, so that none of its previous decisions afford any light in determining it. But most of the other states have statutes of limitations with provisions similar in this regard to our own, which have been frequently construed by their courts; and the general result of these decisions is, that when a defendant is absent from the state when a cause of action accrues against him, his occasional, or frequent visits to the state, will be of no avail to him under a plea of the statute of limitations, however open and notorious his visits may have been, unless he has been in the state, and the jurisdiction of its courts, for the full period limited by the statute, either continuously or in the aggregate.

The statute of the state of Maine is substantially the same as our own; and there, in a suit on a promissory note, which the defendant claimed was barred, he offered to show that though he lived in the Province of New Brunswick, he was frequently in the state to the knowledge of the plaintiff. But the court said: “The defendant was absent from and resided out of the state when the cause of action accrued, and has not since resided within it, though he may have occasionally been within its limits,” and it was held that he could not avail himself of the bar of the statute. Hacker v. Everett, 57 Maine, 548. We cite, in this connection, and to the same effect, Milton v. Babson, 6 Allen 322; Lane v. National Bank, 6 Kan. 74; Smith v. The heirs of Bond, 8 Ala. 386; Chenot v. Lefevre, 3 Gilm. (Ill.) 637; Bell v. Lamprey, 57 N. H. 168; Bassett v. Bassett, 55 Barb. 505; and Bennett v. Cook, 43 N. Y. 537. In the last case the defendant resided in Jersey City, but did business in New York city, and was there some eight or ten hours each day. He pled the statute. But the court said: “ If the statute runs at all during the presence of a non-resident within the state, such presence must, in any view of the case, amount in the aggregate to six years to render the defense available.” And in Bassett v. Bassett, it is said: “ The object of the exception in the statute was to give the creditor the whole of the six years’ residence in the state within which to commence his action. He is not obliged to follow the debtor to another state; nor is he called upon to watch him to ascertain whether he comes into the state for a temporary purpose, so long as his residence is elsewhere.”

Our conclusion then is, that, under the provisions of section 4989, Revised Statutes, the statute of limitations does not run in favor of a defendant to a cause of action whilst he is absent from the state; and this principle is not affected by the fact that the defendant may have been absent from the state, when the cause of action first accrued against him; for whenever he departs from the state, after having come into it, the running of the statute is suspended from that time and during his absence, whether the cause of action first accrued whilst he was in, or whilst he was absent from the state.

Judgment reversed, and cause remanded with direction to sustain the demurrer to the second defense in the additional answer, filed June 18, 1884, and for further proceedings.  