Fort Collins National Bank v. Strachan

Cornish, J. When the cause of action sued upon accrued, defendant' was outside and a nonresident of this state. After-wards, and for nearly five years preceding the commencement of this action, he was a resident of this state, living here with his family. Prior to coming here to live, he was within the state, openly and without concealment, for temporary purposes, and looking for a location for feeding sheep. If this time should he added to the period of his residence here, more than five years had elapsed before the commencement of the action against him, and plaintiff’s claim is outlawed, as adjudged in the trial court, from which judgment plaintiff appeals. The question is: When did “he (defendant) come into the state” under the provisions of section 7577, Rev. St. 1913, so as to commence the running of the statute in his favor? Section 7577 reads as follows: “If, when a cause of action accrues against a person, he be out of the state, or shall, have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is 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. ’ ’ In Webster v. Citizens Bank, 2 Neb. (Unof.) 353, 356, the question is put, “whether we shall construe our statute to mean ‘reside out of the state’ when it says ‘depart’ and shall construe ‘absence’ as meaning nonresidence, or whether we shall recognize some force [235] in the omission of any reference to residence in onr statute and give effect thereto.” It seems that our statute is peculiar in omitting any reference to “residence.” We held that the language of the statute refers not to domicile, nor to residence, but to personal presence. The words, “come into the state,” must also he held to refer to personal presence within the state. Such' would appear to be the literal meaning of the language used, and probably the legislative in-, tent. It follows that where the debtor comes into the state openly, so as to he visible to all who choose to seek after him, without resorting to any concealment to prevent his creditor^ from knowing of his presence, and his stay is such as to render him accessible to service of summons, then the statute commences running at once. For cases hearing upon this question, see Webster v. Citizens Bank, supra; Baxter v. Krause, 79 Kan. 851; Gibson v. Simmons, 77 Kan. 461; Stewart v. Stewart, 152 Cal. 162; Morrow v. Turner, 2, Marv. (Del.) 332; State Bank v. Seawell, 18 Ala. 616; Wilson & Co. v. Daggett, 88 Tex. 375, 53 Am. St. Rep. 766; Bassett v. Bassett, 55 Barb. (N. Y.) 505; Gibbons v. Ewell, 1 Handy (Ohio) 562; Stanley v. Stanley, 471 Ohio St. 225; Weille v. Levy, 74 Miss. 34, 60 Am. St. Rep. 500; Campbell v. White, 22 Mich. 178; Ridgeley v. Price, 16 B. Mon. (Ky.) 409. Affirmed, Sedgwick, J., not sitting.