Cook's v. Holmes

Napton, Judge, delivered the opinion of the court. This was a suit upon a note and a plea of the statute of limitations. About four or five years after the cause of action accrued, the defendants removed with their families to Arkansas, and have resided there ever since, having made, however, occasional visits to this state in the interim. The question is whether the plea of ten years since the cause of action accrued is, under such circumstances¿ a bar, and we think it is not. The statute of 1835, which governs this case, provided that “ if, after a cause of action shall have accrued, such person depart from and reside out of this state, the time of his ab-scence shall not be deemed or taken as a part of the time limited for the commencement of the action.” The case of Nelson v. Beveridge, 21 Mo. 22, was upon the eighth section of the third article of the statute of 1845, but the reasoning of the court, in that case, in relation to the maxim that where the statute once commences running it never stops, is applicable to this case. It is indeed manifest that this principle has no application to such provisions as are found either in the eighth section referred to in that case or in the section- now under consideration. The case of Thomas v. Black, 22 Mo. 330, is a construction of the first part of the seventh section of the second article of the act of 1845, and merely decides that the provision has no application where the defendant is not a resident of the state when the cause of action accrues.- The latter part of this section, which is precisely like the provision of the act of 1838, is plain, that the absence of the defendant, after the cause of action accrues, out of the state, occasioned by a change of residence, is not counted in his [64] favor, whether the plaintiff is aware of such removal or not. It is not a question of absconding or concealment, as provided for in the eighth section of the third article, but a simple removal to another state, which stops the statutory bar whilst the residence abroad continues. In Garth v. Robards, 20 Mo. 522, a mere temporary absence to California, leaving a family and property here, was not considered as within this provision; but in the present case the defendants removed with their families and property, and continued to reside in Arkansas up to the time of the trial. As the note sued on was given to Cook, administrator of Maddin, upon Cook’s death the legal title to the note vested in his executor, and the suit was properly brought in the name of the executor of Cook. The judgment is affirmed; the other judges concur.