Allen v. Hill's adm'r

JUDGE COFER delivered the opinion of the court. It is conceded that the causes of action in these cases •accrued in 1871, in the state of Texas, and that the appellant was then, and has ever since, up to the time of these trials, been a resident in, and citizen of, this state. Our statute provides, in substance, that the Texas statute shall govern in these cases. If suits brought in Texas upon these causes of action, at the time these suits were brought [121] in this state, would have been barred, then the pleas of the .statute are good here. The Texas act of 1841 provided a limitation of two years •for such actions, with this proviso: ‘ ‘ That if any person, against whom there is or shall be cause of action, is or shall be without the limits of this republic at the time of the ac- • cruing of such action, or at any time during which the same might have been maintained, then the person entitled to such •action shall be at liberty to bring the same against such per.son or persons after his or their return to the republic; and ■the time of such person’s absence shall not be accounted or taken as a part of the time of limitation. ” (Hartley’s Digest, 730.) The settled construction of this proviso by the courts of 'Texas seems to be, that it does not apply to actions against persons not in the state, nor residing there when the cause ■of action accrued. (Snoddy v. Cage, 5 Texas, 106; Love v. Doak, Ib., 343; Fisher v. Phelps, &c., 21 Texas, 556.) But counsel contend that these cases fall within section 4 • of an act of the legislature of Texas, passed in 1852, which ••reads as follows: “No demand against a person who shall hereafter remove to this state, incurred prior to his removal, shall be barred by the statute of limitations of this state until he shall have ■resided in this state for the space of twelve months: Pro■vided, That nothing in this section shall be construed to •■affect the 13th section of an act of limitation, approved .February 5, 1841.” That section provides that no action shall be brought • against any immigrant of Texas to recover a claim which wvas barred by the law of limitation of the country or State ■.from which he immigrated. [122] We have been referred to but one case construing the act. of 1852. (Thompson v. Berry, 26 Texas, 263.) That was a suit nominally against a citizen of Texas but. really against a citizen of Louisiana, on a cause of action, which accrued in the latter state, to recover slaves fraudulently removed, to ■ escape the process of the courts in that, state. The act of 1852 applies in terms to such persons only as-remove to that state, and in Thompson v. Berry the court, intimates that such is its meaning. But it was there held, that, as the property had been brought into the state for the-fraudulent purpose of escaping the jurisdiction of the courts, of Louisiana, the case was within the spirit of that act; and that' suit having been commenced within one year after the-slaves were brought into the state, and the cause of action not being barred in Louisiana, the plea of limitation was not: available. The court treated the presence of the property as a substitute for the removal of the defendant to that state.. No reference whatever is made, in the argument of the court,, to the fact that the defendant who claimed the slaves was. personally before the court, which shows that the court re- ■ garded the removal of the defendant to the state, or something equivalent to it, as necessary to prevent the statute-from running in favor of one not a resident when the cause-of action accrued. The act of 1852 in terms applies only-to persons who shall remove to Texas, and Thompson v. Berry shows that it is so understood and construed by the-supreme court of that state; and the plea only failed in that-case because the .fraudulent removal of the slaves to the state-brought the case within the spirit of the act; that is, the-court treated the removal of the slaves as equivalent to the removal of the defendant. [123] Allen never removed to the state of Texas after these causes of action accrued. He continued to reside here for more than four years thereafter, and if he had been transiently in Texas and served with process on the day these-suits were commenced, and had pleaded the statute of limitation, the plaintiffs, on the facts appearing here, could not have avoided the plea by replication, because they could not have brought him within the act of 1852 by averring that he had removed to the state and had not resided there one year-before the commencement of the actions. Thompson v. Berry shows that such averments would be necessary to prevent the bar from operating. The act of 1852 is not itself an act of limitation. It is a mere saving by which limitation-is prevented from running in certain cases, and in order that, it may have that effect upon one who pleads the statute of 1841, it must be shown that he comes within the terms or spirit of the act of 1852. There must be actual removal to-the state, or that which is equivalent to it. The judgments must be reversed, and the cause remanded for new trials upon principles not inconsistent with this, opinion.