Luce v. Clarke

Gilfillan, C. J. 1878 G. S. ch. 66, §§ 15, 16, read: “Sec. 15. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced, within the times herein limited, after his return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action. “Sec. 16. 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 cannot there be maintained by reason of the lapse of time, an action thereon cannot be maintained in this state, except in favor of a citizen thereof who has had the cause of action from the time it accrued.” The construction of Sec. 16 only is directly involved in this case, but, as the two sections have a bearing on each other, and as Sec. [360] 16, as we construe it, limits in one respect Sec. 15, we have quoted both at length. The clause to be construed in Sec. 16 is: “When a cause of action has arisen in a state or territory.” When is a cause of action deemed to have arisen in a particular state, territory, or country, within the meaning of this statute ? Suppose the cause of action is, say, for a debt, payable, according to the terms of the contract, in one state, and when it becomes due the creditor resides in another, and the debtor in a thiipd, does the cause of action arise, within the meaning of statutes of limitation, as soon as the debt falls due, and, if so, in which state ? All statutes of limitation, in prescribing the periods, have reference for the beginning of such periods to the time when the opportunity to commence the action arises. And so there never was a statute of limitations for the purpose of which, in the case we have supposed, the cause of action would be deemed to have arisen as the debt fell due in the state where the debt was made payable, there being then in that state neither creditor to sue nor debtor to be su.ed; nor for the purpose of which it would be deemed then to have arisen in the state of the creditor’s residence, there being no debtor there to be sued. We know of no such statute anywhere under which it would not be held that the cause of action had arisen in the state where the debtor resides, and had arisen in no other, and that it arose when the debt became due, for then and there concurred the two things necessary to make the opportunity to commence an action, to wit, the existence of facts constituting a cause of action suable in the courts of that state, and the presence in it of the defendant in such cause of action. Whenever the question arises as to the operation of the statute of any state, and as to the time when it began to operate, it is to be determined by the existence of those facts, — of the opportunity to commence an action in that state. The legislature, of course, is presumed to have known that when it passed the statute; and in the clause, “when a cause of action has arisen,” etc., it must have had reference not merely to the facts constituting the cause of action, but also to the existence of the fact that brings the cause of action within the operation of the statute of limitation. [361] The intention may be inferred (it is not very well expressed) to recognize the effect of the limitation laws of any other state whenever a cause of action has come under the operation of such laws, and been barred by them. Very little doubt could be made, in respect to the notes involved which came due when both parties resided in Wisconsin, that, had the defendant continued to reside there the period of limitation by the law of that state, we would have been required by Sec. 16 to recognize the effect of that law as a bar, and as little that, had defendant removed to Iowa a day or two before the notes fell due, and resided there the period of limitation by the law of that state, we would have been required to recognize the effect of the law of Iowa as a bar. Can it be that, notwithstanding the cause •of action came within the operation of the law of Iowa, and continued within its operation till it was a bar there, we are not to recognize the effect of that law because the defendant resided in Wisconsin at the time of and for a year or two (a day or two would have been the •same) after the notes came due, so that the law of that state began to operate on the cause of action ? If so, a case might be supposed (and doubtless many like it have actually occurred) in which a cause of action arose fifty years ago, say in the state of New York, where the parties continued to reside for a year or so, then removed to, say, Illinois, resided there forty-nine years, and removed to Minnesota, would we have to ignore the forty-nine years in Illinois, because of the one year in New York? See. 16, construing it literally, can be made to say so; but the result would be so absurd, so utterly without suggestion of reason, that we cannot, unless driven to it by clear, •unambiguous terms, conclude the legislature intended such result. The construction of the section that we arrive at as the most reasonable is that, where the cause of action did not arise in this state, nor accrue to a citizen of this state, and it has come under the operation •of the limitation law of another state, territory, or county, and continued under its operation till it became a bar, it is to be recognized as a bar here. Though several states have provisions in their limitation laws similar to those in Sec. 16, we have not been referred to nor been able to find any but one case construing such a provision. See Osgood v. Artt, 10 Fed. Rep. 365. Application for reargument refused on May 11, 1892. (Opinion published 51 N. W. Rep. 1162.) The statute of limitation bars the action as to all the notes, and it is therefore unnecessary to consider any other question. Order affirmed.