Reeder v. Cargill

Wood, J., (after stating the facts). The testimony of appellant Reeder and of witness Matheny tends to prove that the alleged claim for which this suit was brought would not be due until the appellee had returned from the penitentiary after serving the term of his imprisonment. According to this testimony, appellee and Wright had in contemplation that appellee would serve his term in the penitentiary, and that the balance of the fee claimed by Wright would not be due until the year for which he was sentenced had expired, or at least until the time that he should legally serve under the sentence had expired. Reeder testified that they did not contract with reference to appellee making his escape. We are of the opinion that, according to this testimony, the amount claimed was due at the expiration of the period for which appellee was sentenced to the penitentiary. But for the fact that appellee had made his escape from the penitentiary, this action could have been commenced against him at that time, and the statute of limitations, had he not made his escape, would have commenced to run at that time also. But section 5088 of Kirby’s Digest provides as follows: “If any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times respectively limited after the commencement of such action shall cease to be so prevented.” The escape of appellee from the penitentiary was an unlawful and improper act on his part, which, under the above statute, suspended the running of the statute of limitations from the time when the alleged debt was due until appellee was pardoned. The law in regard to service of summons upon convicts makes provision only for service upon convicts who are imprisoned in the penitentiary. Kirby’s Digest, § 6051. Therefore, one who occupied the status of an escaped convict, although he may have been living openly and publicly at the place where he resided before his sentence, can not set up that the statute of limitations was running during the time he was an escaped convict, nor can he complain of a lack of diligence in not serving him with summons in a civil action during such time. In contemplation of law, a convict who has escaped from the penitentiary during the period of such escape and before pardon has no usual place of abode where he may be served with process under the provisions of section 6042, subdivision 3, Kirby’s Digest. It will be observed from what we have said that the cause was tried upon a misconception of the law. The instructions of the court were based upon this misconception of the law, and were therefore erroneous and prejudicial. Prayers for instructions 4, 5 and 6 on behalf of appellant, in the view we have expressed, were correct, and the court erred in not granting the same. For the errors indicated the judgment is reversed and the cause remanded for a new trial.