Penley v. Waterhouse

Wright, C. J.. Section eight, of the “act for the limitation of actions, and for avoiding vexatious lawsuits,” approved Eeb. 15, 1843, is as follows.: — “ That if any person .or persons, against whom there is, or shall be, any cause of action, as specified in the preceding sections of this act, except real or possessory actions, shall be out of this territory at .the time of the cause of such action accruing, or at any time during which a suit might be sustained on such cause of .action, then the person or persons who shall be entitled to such action, shall be at liberty to bring the same against such person ox persons after his, herj or their return to this territory; and the time of such person’s absence, shall not ' be accounted or taken as part of the time limited by this .act.” It is clear, that if the time during which .defendant was absent, is to be excluded, then his plea cannot be sustained. Whether it shall, or shall not, depends upon the construction to be given to the above section, and especially the words, “out of the territory,” therein contained. What, then, is the meaning of these words, as here used ? Were we governed alone by the strict literal language' used, it would perhaps be indisputable, that if the defendant was absent in person, without reference to his residence, such absence must be excluded. To follow such literal construction, however, would in many cases be improper, and defeat the clear intention of the law. The intention of the legislature, and the object of the law, axe cardinal considerations in .the construction of .any given statute. So, also, we must — 500 — have reference to tbe context, and tbe approved usage of tbe language used; as also to tbe fact, whether the- words used have acquired in tbe law any peculiar and appropriate meaning. Keeping these considerations in view, let us inquire, what was tbe object of tbe exception contained in this eighth section? Do tbe words, “ out of tbe state,” and “ tbe time of such person’s absence,” mean a mere personal absence from tbe state; or such absence as entirely suspends tbe power of a party, plaintiff, to commence bis action, by service on tbe defendant in either of tbe methods provided by law? We think they mean tbe latter. By tbe statute of 1843, chap. 112, § 30 (Rev. Stat. 475), service of all writs of summons could be made by reading to tbe defendant, if found; and if not found, by leaving a copy thereof, attested by tbe officer serving tbe same, at tbe defendant’s dwelling-house or usual place of abode, with some person of tbe family, of fifteen years of age or upwards, and stating tbe contents to said person. To our minds, tbe object of this eighth section was, that a plaintiff should not be barred of bis action by tbe lapse of six years, if bis right to his remedy was suspended by tbe absence of tbe defendant. When that right was not suspended, however, then there is no reason why be should' claim that tbe time did not run. By tbe provision above referred to, bis right to proceed with bis action, and merge bis demand into a judgment, was just as perfect and complete, where tbe service was made by copy left at tbe usual place of abode of tbe defendant, as if served by reading to tbe defendant. Where tbe family of tbe defendant remains at tbe usual place of abode, and be is absent temporarily, or on business, we do not think be is out of tbe state, within tbe meaning of tbe said exception. Had tbe defendant been absent with bis family, or bad bis family been scattered, or in a condition that no service could have been legally made, then it would have been entirely different. In such case, tbe opportunity for service would have been entirely suspended, and reason, as well as legal rules, would dictate that tbe plaintiff should not be affected 'by such absence. Not — 501 — so Here, however. The rejoinder shows that his family remained at their usual place of abode, and that he was absent temporarily, and on business. This, by the demurrer, is admitted to be true. And, therefore, during his entire absence, the plaintiff’s power to obtain the necessary service, was just as complete, for all needful purposes, as if the defendant had never left the state. This view, we think, is warranted by the context, and whole object and policy of the law. The case of Hackett v. Kendall, 23 Vermont, 275, discusses this very question, and clearly sustains the view above taken. In that case, Redfield, J., uses the following language: “ It seems to us, that all, which it is important to determine is, whether the defendant, at that time, left any domicil in the state. If not, he must be taken to be absent from and reside out of the state, in the language of the statute. This question of domicil may possibly be viewed differently with reference to different subjects. But the consideration which must have operated upon the legislature, in so framing the statute in this case, seems to us to have been what is suggested by counsel — whether the defendant’s domicil in this state was so broken up, that it would not have been competent to serve process upon him, by leaving a copy there.. And for that purpose, it seems to us, there must be some place of abode, which his family, or his effects, exclusively maintain in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy 'being left there, and notice in fact proved, the plaintiff may take a valid judgment.” And while in that case, it was held' that the defendant had so removed and been absent with his family, as to leave no such domicil as the law contemplated, in order to give the plaintiff an opportunity for service by copy, still the doctrine announced in the above extract, does not appear to have been doubted. And while the language of their statute is, “ absent from and reside out of the state,” yet, we think the reasoning used by the court would apply with equal force to a case arising under our statute. The eighth section of the statute of Connecticut of 1838, uses the words “ without this state.” In the construction of — 502 — this sentence, the Supreme Court of that state, uses this language r “ Considering this provision as being designed to protect the rights of the plaintiff, in those cases where it was not practicable for him to enforce them, by a suit, in consequence of the absence of the defendant from the state, its justice and propriety are most obvious. But it is not necessary, nor does justice seem to require, that we should extend it, by construction, so far as to include in the computation of the time limited for bringing suits, those periods when the defendant was personally out of the state, but during which the plaintiff might, notwithstanding, have commenced a personal action against him, by the judgment in which he would be conclusively bound.” Sage and another v. Hawley, 16 Conn. 106. It is proper to add, that in this construction William, C. J., did not concur, he insisting upon a strict literal construction of the language used.. The majority opinion was, however, concurred in by the other judges,, four in number, and is well reasoned, and, we think, sustained by the reason and policy of the statute. The case of Vanlandingham v. Huston, 4 Gilm. 125, was decided upon a statute precisely similar to ours. The facts of the case are not developed', and it is, therefore, not so satisfactory as an authority, as it otherwise would be. This language is used, however, which is in entire accordance with the construction given in this opinion. Says Koekner, J. r “-Under our statute, the inability of the creditor to have personal service on his debtor, seems to be. made the sole ground for arresting the statute.” See also,. Abbeo v. Higgins, 2 G. Greene, 535. Without referring to other authorities, we think the above sufficient, aside from the reason of the rule, to justify'us in holding the matter set up in defendant’s rejoinder, as sufficient. We are referred by appellee’s counsel, to the cases of Ruggles v. Keeler, 3 Johns. 263; Byrne v. Crowningshield, 1 Pick. 263; King's Administrator v. Lane; 7 Missouri, 241 and Ford v. Babcock, 2 Sandf. Sup. Court, 524. As we — 503 — understand it, however, neither of these cases decide the question involved in this. All of them, except the one in Pickering, merely decide, in the language of the syllabus in the case of Ruggles v. Keeler, that the saving in the statute of limitations, extends to foreigners, or those who have resided altogether out of the state, as well as to citizens of the state who may be absent, for a time. And therefore, that while the words, “ after his, her, or their return to this territory,” as used in the statutes of those states, and in our statute of 1843, would seem to indicate that the exceptions applied alone to those who had been once resident, had gone out, and then returned, yet the exception applies also to those who had been before non-resident or foreigners, and that the statute only commenced running after they came into the state. See Pratt v. Thibbard, 1 G. Greene, 9. The ease cited from 1 Pick., in fact, by reference to the note, decides the same thing, and does not, as we think, decide anything more, so far as the statute of limitations is concerned. Beyond this, a doubt is suggested, whether there had been such return of the defendant, within the jurisdiction, as gave the plaintiff a reasonable opportunity to commence a .suit, and thus, for that reason, prevented a suspension of the statute. But it was held not to be necessary to decide that question even, and the case was disposed of upon another ground. The appellee further claims, that if the construction above given, answers all the purposes of the exception, so it would whenever defendant left property exposed, sufficient to satisfy the debt. But by such judgment, where property only was attached, without service, it is sufficient to say, the defendant would not be personally bound. The plaintiff might, in such case, obtain a judgment, so as to bind the property attached, but it could have no further validity. It could not be enforced against other property of the defendant, nor be evidence of a judgment recovered in any suit brought thereon, .in any other tribunal, so as to justify recovery. In this lies the distinction, and we think it clear — 504 — and palpable. In tbe one case, tbe legal rights of tbe parties in tbe subject matter -of tbe suit, could be conclusively ascertained and fixed, in tbe other, not. Judgment reversed.