
    George Sullenberger v. Jeremiah Gest and John Mills.
    "When a demurrer to the plea or replication has been overruled and withdrawn, and an issue of fact joined, such demurrer constitutes no part of the record, and will not be’considered on error.
    If an immaterial issue be joined, and a repleader not awarded, it is error.
    If matter is plead or replied in due form, but which, if found true by the jury, constitutes neither a bar nor answer, there should be judgment non obstante veredicto in favor of the party whose plea is confessed, and not avoided by the fact found by the verdict.
    A replication to the pica of the statute of limitations, that the defendant, after the cause of action accrued, and during the time limited by the statute, removed from the state to parts unkno.wn, and that the action was commenced within the time first limited by the statute, after his return to the state, and his place of residence became known to the plaintiff, avoids its effect as to the time which had run prior to such removal, and during such absence, and gives the full time to commence suit after such return, and the place of residence becomes known to the plaintiff.
    This is a writ of error directed to the court of common pleas of Miami county.
    *The record shows that the plaintiffs below declarod against the defendant for goods sold and delivered, etc. The defendant plead the general issue and statute of limitations — that the cause of action had not accrued within six years prior to tho commencement of tho suit. To the plea of tho statute of limitations, the plaintiff replied that, during the time limited by the statute, the defendant removed his person without the State of Ohio to parts unknown to the plaintiff; and..that the suit was commenced within six years next after his return to the state and his place of residence became known. To this replication tho defendant interposed a demurrer, which was subsequently overruled and withdrawn, and leave given to amend. The defendant then filed a rejoinder traversing the replication, and concluding to the country.
    The cause was tried by a jury, who found a verdict for tho plaintiff, upon which the court rendered judgment.
    To reverse this judgment this writ of error was sued out, and tho cause of error assigned was, that the court of common pleas erred in overruling the demurrer, and in rendering a judgment for the plaintiff.
    Charles Morris, Jr., for plaintiff.
    W. J. McKinney, for defendants.
   Read, J.

The demurrer having been overruled and withdrawn, and rejoinder filed by defendant, it is not before the court for consideration. But, if the pleading will not support the judgment, the facts stated in the replication not being sufficient, if true, to avoid the plea of statute of limitations, judgment must bo reversed.

It is contended there is error, because tho issue tendered by tho replication and accepted by the rejoinder is immaterial, and that tho court should have awarded a repleader. If a repleader be denied when it should be granted it is error, because the verdict leaves the court in doubt for which party to *give judgment. But issue taken upon a plea or replication, good in form, though not in fact, makes no case for a repleader. When plea or replication is good in substance, and some immaterial part of it is traversed, leaving the main fact unfound by the verdict of tho jury, a repleader must be awarded. A repleader looks to the form and manner of pleading, and not td the substance of the plea.

If the plea or replication is good irf form, but sets up matter that neither constitutes bar nor answer, and issue be taken upon it, and it be found true by verdict, it still loaves the cause of action or bar unanswered and confessed, because the fact plead and found is itself no bar; and, in such case, judgment, non obstatite veredicto, should be in favor of the party whose cause of action or bar is confessed, and not avoided by the fact'set up, though true. This is upon the ground that the facts plead in themselves constitute no bar or answer. Hence judgment non obstante is upon -the merits where repleading the matter, in any form whatever, could not make it good. A repleader is awarded when the matter is good, but defectively and informally stated to have it molded into proper form and manner.

If there be error, then, in this case, it looks to the merits; and the sole question is, whether the matter sot up in the replication, to avoid the plea, is sufficient in law. This involves a construction-of section 7 of the “act for the limitation of actions,” excepting certain cases from its operation.

The statute excepts three classes of cases : 1. When any person shall have left the state and remained out of the same; or, 2. Shall reside out of the same when the cause of action shall have accrued against him, or shall have removed to any place unknown to the person in whose favor such cause of action may exist during such time as is limited by this act. In such cases the action may be commenced within such time as is limited by the act, after his or her return to the state; or if within the state, and if his or her residence is unknown, then within such time after his or her place of residence shall become known.

The replication sots up a removal to parts unknown without *thc state, and suit brought within six years after a return to the state.

It is a maxim of interpretation that, when the words of a statute are unambiguous, there is no room for construction.

The statute says : “If a person remove to parts unknown during such time as is limited by this act, then alter his return to the state, or if within the state, after his place of'residence shall become known, the action may be commenced against him within the time limited by this act.”

If a person, then, go,to parts unknown, during the existence of a cause of action against him, he loses the benefit of the timo which may have run in his favor prior to his departure, and gives the entire time, first limited, to the person having a claim against him, within which to commence his suit, after his place of residence shall have become known. There, of course, must be a removal and change of residence, not a mere temporary absence.

If a person remove to parts unknown, it matters not whether he goes beyond the limits of the state, or remains concealed or unknown within it, the statute does not commence running in his favo.r, until his place of residence becomes known. A mere return, in case of removal without the state, is not sufficient, unless the claimant has a knowledge of his residence after such return.

Under this view of the statute the replication is good, and judgment upon the verdict was rightly rendered for the plaintiff.

Judgment affirmed.  