Whitman v. McClure

Trippe, Judge. Section 2929, Code, provides, “if the defendant in any of the cases herein named shall remove from this state, the time of his absence from the state, and until he returns to reside, shall not be counted or estimated in his favor.” The court below, in the charge to the jury, and in his decision on the motion for a new trial, construed this section to mean that the defendant must not only have removed from the state, but must also have returned to reside in the state before the action was commenced, else the plaintiff could not avail himself of the exception to the statute, and there was no suspension; that is, there must be both a removal and a return to reside, to disable the defendant from counting the time of the absence in his favor. Whether the court was right in this construction was the question presented, and the only one we decide. The act of 1852, pamphlet page 239, was an act entitled “an act to stop the running of the statute of limitations in all cases where the defendant shall abscond, or remove beyond the limits of this state,” and enacted that the statute “shall, in all cases, cease to run or operate in favor of any person against whom any right of action shall accrue, who shall abscond or remove, before action is brought, beyond the limits of this state until his or her return to the state.” The act of 1856, pamphlet acts of 1855 and 1856, page 235, which was a codification of the acts of limitation, enacts in the 23d section “that when any person against whom a right to sue exists shall remove from this state, the times' mentioned in this statute in which suits are to be brought, shall cease to be computed in his favor from the time of such removal, and so continue until [593] lie shall return and fix his residence in this state.” Do not both of these acts plainly say that the removal of the defendant from the state, ipso facto, works a suspension of the statute, and the suspension continues until in tíre first he returns to the state, and in the second, until he returns to fix his residence in the state. Under the act of 1852 he may have remained absent from the state twenty'years, but if he returned to the state, was found in the state, so that he could be served with process, he could be sued, and could not plead the statute. Under the act of 1856, if his return and fixing his residence in the state were both necessary to occur before it would operate a suspension of the statute, then he could return to the state as often as he might please, and sojourn as long as he pleased, so he did not fix his residence, and could defy the creditors from whom perhaps he had fled. Surely no act ever meant this. The provision in reference to returning to reside in the state is first found in the act of 1856. This was doubtless inserted to prevent an abuse by debtors of the former provisions on this point, that a mere return to the state to sojourn for a season might operate to revive the running of the statute. Cases of this sort had occurred. Debtors who had removed and been absent a few years had come back on a visit, remained awhile, and left again for their new home. It was claimed that this return operated to satisfy the terms of the statute; and they afterwards set up, on a future return, and in some instances to become residents again, that the bar of the statute had, by reason thereof, fully attached in their favor. There had been decisions in the circuit courts to this extent, and it was to prevent the frauds that might thus be practiced by these temporary and brief returns, that it was required in the act of 1856 that a residence must be fixed, or the suspension would continue. Thus the law stood when the Code was adopted. The 2929th section of the Code is, in substance and meaning, what the act of 1856 was. That section says “the time of his absence from the state, and until he returns to reside, shall not be counted or estimated in his favor.” This does not mean that the statute still runs after his removal unless he returns [594] to reside. If it does, the debtor, if he once resides abroad the statutory period of limitation, might be half his time -within the state, and if he did not become a resident, he could defy his creditors, although it is specially provided by section 3416, Code, that “a citizen of another state passing through this state may be sued in any county thereof in which he may happen to be at the time when sued.” We do not think that the rule recognized in Bishop vs. Sandford, 15 Georgia, 1, conflicts with this decision in any way. It is there said that courts will not apply a forced construction to bring a párty within an exception to the statute. We do not think we do this; but, rather, it would require a forced construction of section 2929 to take the defendant out of it. The defendants having appeared and made defense to the attachments, the proceedings became a suit as in cases of personal service, and the removal of the defendants from the state operated a suspension of the statute from the time of such removal, and the suspension continues until their residence be fixed in the state. Such, we think, is the plain meaning of the act of 1856, and section 2929 does not change it. The attachment in this case was levied by serving a summons of garnishment. It does not appear that defendants had any property, real or personal, on which it could have been levied, or that plaintiff could, at any other time after defendants left the state, have' levied an attachment. Judgment reversed.