
    A. A. Thomas v. Frank Holmes, Appellant.
    1. Actions: delay in bringing same: evidence. The death of a witness and consequent loss of evidence will not support the defense of delay in bringing the action, where the defendant’s own testimony does not support the defense and that of the deceased witness would have been merely corroborative.
    
      2 Same. Mere delay in bringing an action, unless for the statutory period and such that the doctrine of estoppel • may be applied, is not a bar thereto.
    
      Appeal from Butler District Court. — Hon. Clifford P. Smith, Judge.
    Saturday, April 10, 1909.
    Suit at law on a promissory note. Defense, laches and want of consideration. Trial to the court, and judgment for the plaintiff. The defendant appeals.
    
    Affirmed.
    
      C. M. Greene, for appellant.
    
      M. Hartness, for appellee.
   Sherwin, J.

The note in suit was executed to S. Thomas & Co. in January, 1884, and became due October 1st of the same year. Some three or four years -after executing the note, the defendant removed from this State to Illinois, where he has since resided. He does not, either in his pleadings or in his testimony, deny mailing and delivering the note to the payee thereof; but he does say that he has no recollectioh of such a transaction. On .the other hand, the evidence is conclusive that it is his note, and that it was given to the payee thereof for a valuable and sufficient consideration. The defendant was about twenty-four years of age at the time the note was made. He was married and engaged in business for himself. He then and thereafter, until leaving the State, had but little personal property and no real estate, and when he left the State what personal property he left behind was left in the possession of his father, who listed it as his own for taxation. Several years before this action was commenced the defendant’s mother .died, leaving real property in Butler County in wbicb tbe defendant had an interest as her heir, and tbis suit was aided by an attachment, wbicb was levied upon such interest. Tbe defendant relies upon tbe defense of lacbes, contending that be bas been deprived of substantial rights by tbe delay in bringing action.

His principal claim on tbis branch of the case is that evidénce bas been lost by tbe death of a Mr. Gillham, who, be says,' was a party to tbe transaction out of wbicb tbe grew- There is nothing to the claim, however. Tbe defendant’s own testimony does n0£ a defense to tbe note and, if Gillham’s testimony would have corroborated him, it would not alter tbe condition. In other words, the defendant bas wholly failed to show that tbe delay complained of bas deprived him of any substantial right, or that tbe plaintiff should be estopped from now maintaining tbe suit because thereof.

Because of tbe defendant’s residence in another State tbe statute of limitations bad not become effective, and we have been cited to no case, nor have we been able to find one, wbicb bolds tbe plea of lacbes good under such circumstances. Tbe general rule as to lacbes is that, where tbe action is at law, mere delay will not bar tbe action, unless it covers' tbe statutory period, and unless tbe doctrine of estoppel may be successfully invoked. Doyle v. Burns, 123 Iowa, 488, and cases cited therein.

There is nothing in tbe record before us tending even to show that tbe plaintiff should be estopped from «prosecuting tbis action. Tbe judgment of tbe trial court must therefore be affirmed.  