Roth v. Holman

The opinion of the court was delivered by Mason, J.: Sol Roth and Jesse Langford were sureties on a note for W. J. Holman. On May 30, 1912, they paid it. On November 29, 1916, they brought action against Holman for reimbursement. The sole defense interposed was the statute of limitations. A verdict was directed for the plaintiffs, on which judgment was rendered. The defendant appeals. The parties disagree as to what statute of limitations is applicable. The defendant asserts that the period is three years, the plaintiffs five. We shall assume that the theory.of the defendant in this regard is correct. He testified that in March, 1912, he left Kansas, and between then and the time the action was begun was absent from the state two years, although maintaining a residence here during the entire period. He was, therefore, by his own statement, personally in the state [176] for only two years and nine months after the cause of action had accrued by the payment of the note, and before the action was brought. Consequently, the claim was not outlawed, inasmuch as the statute did not run while he was outside of the state, notwithstanding summons might have been served upon him at any time by the leaving of a copy at his place of residence. (Mary E. Lane, Adm’r, v. The National Bank of the Metropolis, 6 Kan. 74; Gibson v. Simmons, 77 Kan. 461, 94 Pac. 1013.) The judgment is affirmed.