Fargo v. Dickover

Mr. Justice McCamant delivered the opinion of the court. 1. The questions raised on this appeal involve the construction of our statute of limitations. Sections 3 and 5, L. O. L., are in part as follows: “ § 3. Actions at law shall only he commenced within the periods prescribed in this title, after the cause of action shall have accrued; except where, in special cases, a different limitation is prescribed by statute.” “ § 5. Within ten years,— “1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.” If there be nothing to defeat the bar of the above statute, it is clear that the lower court was right in sustaining the demurrer. The only contention open to plaintiff is that the effect of this statute is modified by Section 16, L. 0. L.: “If, when the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the state, or the time of his concealment ; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action.” It has been held three times that this latter statute is inapplicable to nonresidents: McCormick v. Blanchard, 7 Or. 232; Crane v. Jones, 24 Or. 419 (33 Pac. 869); Van Santvoord v. Roethler, 35 Or. 250 (57 Pac. 628, 76 Am. St. Rep. 472). The last of these cases was an action on a judgment secured in a court of another state; the case is squarely in point on the facts and [218] is decisive of the controversy unless it has been overruled. The only Oregon case relied on by plaintiff is Jamieson v. Potts, 55 Or. 292 (105 Pac. 93, 25 L. R. A. (N. S.) 24). The defendant in that case was a nonresident who executed two promissory notes within this state and departed from Oregon before their maturity. He was without the state when the cause of action accrued and resided without the state continuously until the action was brought. The payee of the notes and plaintiff to whom they were indorsed at all times resided in Oregon. The action was brought thirteen years after the maturity of the notes. Under these facts it was held that the ease fell within the protection of Section 16, L. O. L., and that the statute of limitations did not bar the action. Mr. Justice Slater said: “Defendant was in the state when he executed and delivered each of the notes to a resident thereof. It is therefore a domestic, and not a foreign contract. He departed from the state, and after the cause of action accrued, he came again into the state, although for a transient and temporary purpose. It can therefore be said that he ‘returned’ to the state.” This language manifests an intention to distinguish rather than to overrule. While other portions of the opinion cite with approval authorities which are out of harmony with the rules announced in McCormick v. Blanchard, 7 Or. 232, Crane v. Jones, 24 Or. 419 (33 Pac. 869), and Van Santvoord v. Roethler, 35 Or. 250 (57 Pac. 628, 76 Am. St. Rep. 472), we do not think that Jamieson v. Potts should be treated as overruling these cases. The case of Jamieson s. Potts will be followed whenever a similar state of facts shall arise, but we still [219] hold that Section 16, L. O. L., is without application to a cause of action arising in another state between nonresidents of Oregon. The Circuit Court did not err in sustaining the demurrer and the judgment is affirmed. Affirmed.