Bonifant v. Doniphan

By the Court, Crozier, C. J. A suit was instituted in the District Court of Leavenworth county by the plaintiff in error against the defendants in error on the 31st day of July, 1863, upon a prom [33] issory note executed in Missouri on the 30th of May, 1860, payable in one year after date. The petition after the usual allegations, contained the following: • “ That at the time before and since this cause of action accrued against the defendants, they the said defendants were out of the state of Kansas, and non-residents thereof, and have thus been and remained absent and non-resident for the last two years.” A general denial was filed by both defendants, and Doniphan filed a separate answer alleging that two years elapsed between the giving of the note and the bringing of the suit, and “ therefore the defendant Doniphan, pleads the statute of limitations as made and established,” &c. Upon the trial of the cause the execution of the note in Missouri and the absence of the defendants, as stated in the petition, were admitted. The court — a jury having been waived— found for the defendants on the ground that the action was barred by the statute of limitations, and rendered judgment accordingly. The petition in error is filed to reverse that judgment. The question presented for our consideration, is : Can a suit be maintained in this state upon a note executed in another state when the action is commenced more than two years after the note fell due, and the defendants are, during the whole time absent from the state? The solution of this question will depend upon the construction to be given the provisions of the Code of Civil Procedure and the “ supplemental act ” as it is called, which was approved Eeb. 10, 1859. It was held by this court in the case of Elliott v. Locknane, et al. (1 Kans. R. 126,) decided at the January term 1862, that the Code took effect on the first day of June 1859. Of the correctness of that decision we entertain no doubt. There were therefore on the first day of June 1859, and now are in force in this state two distinct statutes of limitation, — the one taking effect Feb. 10, 1859, the [34] other June 1st of the same year, unless the latter act repealed the former. The fact that there was not in existence at the date of the*approval of the “amendatory act” any “Code of Civil Procedure passed February 1859,” to be put in force by the provisions of the first section, could not'impair the validity of other provisions which on their face had no reference to such Code. The first section is a mere nullity; the second is the expression of the legislature on a subject over which they had complete control and must be regarded as valid from and after Feb. 10, 1859, the day of its approval. But it is insisted that it was repealed by the 14th section of the Code and had no binding force after the latter took effect, which we found was on the first day of June 1859. That section is as follows: “ Sec. 14. All acts and parts of acts inconsistent with the provisions of this act are repealed.” To determine the effect of this section it will be necessary to consider other provisions of the Code. “Sec. 19. Civil actions other than for the recovery of real property, can only be brought within the following periods.” “ Sec. 20. Within [three years the action upon a specialty or any agreement, contract or promise in writing.” “ Sec. 15. Civil actions can only be brought within the periods prescribed in this title after the cause of action shall have accrued; but where in special cases a sufficient limitation is prescribed by statute the action may be commenced accordingly.” Actions upon contracts made beyond as well as those upon contracts made within the limits of the state would in the absence of other provisions be included in section 20. Being contracts in writing, it could make no difference where they were executed so far as that section would apply to them. But section 15 provides that where in a [35] special case a limitation different from that prescribed in the Code shall be provided by statute, that the provisions of such statute shall control. Therefore if the cases provided for in the act of February 10th are “special cases,” the limitations of the Code are not to apply to them. The provisions of section 20 are very general and include every contract, agreement or promise in writing no matter where, by whom or for what purpose made, except as limited by section 19. It included a great variety of “ special cases.” It would embrace contracts for the repayment of money loaned for the performance of labor for transportation for merchandise, contracts between citizens of the same state and of different states, between citizens and aliens, contracts made within and without the state, and every other conceivable contract, if in writing. Each of those enumerated might without violating any known rule of interpretation be said to be a “ special case.” It is certainly no stretch of construction to say that a limitation of two years with reference to contracts in writing executed out of the state, is a “ special case ” within the meaning of section 14 and with reference to section 20, and if so not provided for or intended to be provided for in the latter section. Consequently the “ amendatory act ” and section 20 construed in the light of section 15, are not repugnant nor inconsistent, and the “ amendatory act” was not repealed by section 14. The action in the court below then would have been barred if there was nothing in the case to take it out of the operation of the “ amendatory act.” The petition alleges, and it was admitted upon the trial that the defendants were absent from the state from the making of the note until the commencement of the suit, which it is claimed by the plaintiff takes the case out of the operation of the statute. Section 28 of the Code provides “ that, if, when a cause of action accrues against a person he be out of the ter [36] ritory or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the territory, or while he is so absconded or concealed.” If this section applies to the plaintiff’s cause of action is was taken out of the operation of the statute. It will be observed that the language is general, “ if when a cause of action accrues,” &e. The operation of the section is not in terms confined to cases in which a limitation is prescribed in the Code. The language is broad enough to include every cause of action whether it be a “special case” as contemplated in section 15 or the limitation be prescribed in the Code. When the Code was adopted it is reasonable to presume that the legislature knew of the existence of the act of February 10th, and if they intended that section 28 should have no application to “ special cases ” where a limitation different from that of the Code was prescribed, they certainly would have so provided by excepting them from its operation. They did not do so. Having no legislative power, we cannot do it. Our conclusions are that the Code took effect on the first day of June 1859, that section 2 of the so called “amendatory act ” took effect February 10th, and was not repealed by the 14th section of the Code, and that the provisions of section 28 apply to cases provided for in each act. We are of opinion therefore, that the court below erred in giving judgment for the defendants, and the judgment will be reversed and the court ordered to sustain the motion of the plaintiff for a new trial. All the justices concurring.