Nelson Morris & Co. v. Cisler

Bigger, J. It is clear that the statute of limitations bars an action on this account unless the proof shows that the defendant concealed himself for such a length of time 'as that, deducting it from the whole time, it will save the action from the bar. On this the plaintiff has the burden, as it is new matter in avoidance. Lindsay v. Maxwell, 4 N. P., 354. The defendant was not .absent from the state. Does the evidence show he concealed himself? Concealment means some affirmative act on his part which would prevent the plaintiff from discovering his whereabouts. Mere ignorance of his whereabouts is not sufficient. 19 Am. & Eng. Enc. Law (2d Ed.), 213; Frey v. Aultman, 30 Kan., 181; Rhoton v. Mendenhall, 17 Ore., 199. The case of Sullenberger v. Gest, 14 Ohio, 205, was .decided under a dissimilar statute. That statute (29 O. L., 214; see Rev. Stat., 4989) provided that if a person removed “to parts unknown,” it would toll the statute. The proof does not show the statute was tolled in this case. The finding of the court is that the action is barred by the statute and judgment must be rendered for the defendant.