Dent v. Jones

Tarbell, J., delivered the opinion of the court: Assumpsit by Jones & Pintard to recover of W. E. Dent, $400, for services as attorneys. The case turns upon the issue under the statute of limitations. Dent, with his entire family, left the state for Europe in the spring of 1870, and returned to his home in the fall of that year. The question before the court and jury on the trial was, whether the time of such absence in Europe should be deducted [268] from the period between the date of the accrual of the claim and the commencement of the suit for its recovery. If not deducted the claim was barred by statute, but if deducted, the right of'recovery depended upon whether the case was otherwise made out, of which there seems to be not much doubt. It appeared that Dent left his house, with all his furniture therein, wholly undisturbed during his absence; and this does not appear to have been controverted on the trial. In such case, mode of service of process is prescribed by statute. Code of 1857, p. 489, art. 64; Code of 1871, § 701. Diligence in the commencement of suits is necessary, arid if process can be served, absence should not be deducted to save the bar of the statute. French v. Davis, 38 Miss., 218, 225. In the case at bar, service of process by posting prominently at the domicile of the defendant, was available to the plaintiffs. If so, the jury must have been misled by the first instruction, in which the right of recovery is based upon the absence of the defendant so that “ a summons could not be served upon him ” — doubtless, in thé minds of the jurors, referring to personal service. If so, this was erroneous. There is also an obstacle to the recovery of the amount claimed. The plaintiffs in the action testified on the trial that on the 'return of Dent from Europe, they demanded $250 of him for the services for which they brought this suit, in which they claimed and recovered $400. According to the rule in Ingersoll v. Morse, 33 Miss., 667, they were entitled to recover only $250. It ought, probably, to be submitted to the jury to say whether by the demand of $250, the plaintiffs intended to fix the value of their services or their charge for the same, at that sum. It is ini erred, perhaps erroneously, that the foregoing points were not mooted on the trial, though clearly embraced in the motion for a new trial, which was overruled. One of the grounds of the motion for a new trial was alleged errors in the instruc [269] tions for the plaintiffs. The first instruction has been noticed. In the second, the court say, “If the jury believe that Dent had a home here, with his furniture at such home, but went abroad for his health and remained so abroad in Ireland and out of the state of Mississippi from April, 1870, until November, 1870, then the jury may find that the said absence of the defendant from Mississippi in Ireland was an actual residence there for the time above stated, and if they so find, they are then authorized by the law to deduct said time from the statute of limitations, and find for the plaintiffs.” The error in this instruction is, that it wholly pretermits the doctrine of French v. Davis, supra, and the mode of service of process authorized by the Code under the facts stated in the instruction. If it had been submitted to the jury to find as a question of fact, whether they believed Dent had a domicile here, with his furniture therein, and they bad found, that they did not so believe; and, if it had been submitted to them to find whether, by the demand of $250, the plaintiffs fixed the amount of their claim or value of their services, as in Ingersoll v. Morse, supra, and they had returned a verdict for $400,' the verdict would have precluded all further cause or chance of contention. The general doctrine as to the distinction between domicile and residence seems to be correctly stated in the instructions. Alston v. Newcomer & Kausler, 42 Miss., 186. For'the causes indicated, the judgment will be reversed and the cause remanded, to enable the questions upon which this case hinges, to be distinctly submitted to and passed upon by the jury. Judgment reversed, cause remanded and a new trial awarded.