Humphrey v. Cole

IVIoAllisteb, P. J. We are of opinion that under the uncontroyerted facts proved and stipulated, the defendant below was entitled to judgment upon the following grounds: The action was barred by the Statute of Limitations. Section twenty of that statute, R. S. 1874, p. 676, is as follows: When a cause of action has arisen in a State or Territory out of this State, or in a foreign country, and by the laws thereof an action thereon can not be maintained by reason of the lapse of time, an action thereonj shall not be maintained in this State. Now it is true that the instrument sued upon was made in this State, April 21, 1857, payable in six months from that date to payees, residing in the State of New York; but it was payable at the office of Fish, Goodale & Co., and where that was located does not appear. It appears that the defendant below, Humphrey, left this State, April 1, 1859, and went to Nebraska to reside, and has remained a resident there ever since, a period of upward-of twenty years. It also appeals by the statutes of Nebraska that an action on the instrument in question would be barred there after the period of five years. It will be presumed that there were courts in the State of Nebraska which had jurisdiction of such cases, when properly invoked. Such courts were always, during the time of Humphrey’s residence there, open to the payees mentioned in said instrument, or to the plaintiff below, whose place of residence during that time does not appear. In Hyman v. McVeigh, decided by the Supreme Court in 1878, reported in the Chicago Legal News, Vol. 10, p. 157, and mentioned among the unreported cases at the end of 87th Ill., the phrase in our statute, “when a cause of action has arisen in a State or Territory out of this State,” was construed. And the court say the words, “ when a cause of action has arisen” as they occur in the statute pleaded, should be construed as meaning when jurisdiction exists in the courts of a State to adjudicate between the parties upon the particular cause of action, if properly invoked, or in other words, when the plaintiff has the right to sue the defendant in the courts of the State upon the particular cause of action, without regard to the place where the cause of action had its origin.” We are unable to perceive any reason from the facts of this case, why it is not governed by said section twenty of our limitation law, under the construction of that section so given, by the Supreme Court. When the instrument in suit was introduced in evidence it appeared on its face to have been due more than twenty years prior to the bringing this suit. That being so, then according to the weight of the authorities cited by the counsel for Humphrey in his very thorough and comprehensive brief, it seems to us that the common law presumption of payment arising from such lapse of time, necessarily arose from what thus appeared; and that there is nothing in the facts stipulated or in the évidence, sufficient to rebut that presumption; especially is that so as to the joint maker, Parmenter. Payment by him would extinguish the claim the same as if made by Humphrey. That is elementary law. Being of opinion that, upon the facts stipulated and the proper inference to be drawn therefrom, the judgment below should have been for the defendant, it is therefore reversed. Judgment reversed.