Greene Common Pleas Court.

Haymaker v. Haymaker, 4 O. S., 272, though decided prior to the adoption of the civil code, is applicable. In that case the plaintiff was permitted by way of replication to the plea of the statute to plead a new promise.

The decedent, Sarah Cuney, was a married woman. For several years she had been living separate and apart from her husband Samuel Cuney, who was not a resident of Ohio, and had no fixed place of abode. She was a resident of the city of Xenia from the early part of 1886 until her death, March 1, 1892. From about March 1, 1886, until October 1, 1888, she resided with plaintiff. During this period she made a visit with friends in Canada, and was absent from Xenia four months and fifteen days, from August 25, 1887, to January 8, 1888. After October, 1888, having some months prior thereto purchased a dwelling house, she occupied the same until her death, in March 1892, during which time she made two visits to Washington, D. C., being absent on one occasion from September 1, 1890, to July 10, 1891, ten months and ten days, and a second time from October 1, 1891, to March 1, 1892, the date of her death.

Plaintiff's account is for board, washing and nursing and medicine furnished and medical services rendered for a period of 115 weeks, between March 1, 1886, and October 1, 1888. The absences of the decedent were intended to be temporary, her usual place of residence being with plaintiff during her first visit, and at her own dwelling house during the second and third visits. Defendant was appointed administrator September 15, 1894, and as such administrator allowed plaintiff's claim September 21, 1894, but disallowed and rejected the same in February, 1895, upon notice from the probate judge, a requisition and undertaking having been given as required by statute. This action was brought April 26, 1895.

Defendant was appointed administrator upon plaintiff's application in Sept., 1894. The decisions are uniform in holding that the failure to appoint an administrator does not interrupt the running of the statute where the cause of the action accrued before the death of the debtor. The running of the statute is not interrupted by the death of the debtor The creditor has the right to have an administrator appointed. In case of his failure to do so until his claim is barred, he is chargeable with his own laches.

Adm'r v. Granger, 6 O., 35, 13 Enc., 737, 738 & Note: Angel on Limitations, sec. 56.

Section 4989, Rev. Stat., provides: "If when a cause of action accrues against a person he is out of the state or has absconded or conceals himself, the period of limitation for the commencement of the action should not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

The first clause of this section has been construed by the Supreme Court in Stanley v. Stanley, 47 O. S., 225.

But the second clause under which it is claimed that this action is barred, so for as it relates to the account for services has not been construed by the Supreme Court, nor by any of the inferior courts in any reported decision. There is a conflict in the decisions of other states in

Lindsay v. Maxwell.

the construction of similar provisions as to absence after the cause of action accrues.

The question, then, is are mere temporary absences while retaining a legal residence and place of abode within the state, are within the provision "if after the cause of action accrues he depart from the state *** the time of his absence shall not be computed as any part of the period within which the action must be brought."

The courts of several states have construed "absence" not to include temporary absence.

Temporary absence, though extending over a period of several months, but effecting no change in the legal domicile of the debtor, does not operate to extend the period of limitation, but are to be included in reckoning the time in which an action should be commenced against him.

Langdon v. Dord, 6 Allen, 463; Collister v. Hailey, 6 Gray, 517; Hallett v. Bassett, 100 Mass., 160.

Here the provision of the statute was "shall be absent from and reside out of the state."

In order to prevent the running of the statute of limitations, the debtor's absence from the state must be such that process cannot be so served upon him that the judgment will bind him personally. Quarles v. Bickford, 13 At., (N. H.) 642.

In this case the court say: "Service may be made by leaving an attested copy of the writ or summons at the defendant's abode."

Where the defendant was absent from the state, but his domicile and usual place of residence were within the state, so that legal service could have been made by leaving copy there, the statute of limitations did not stop running against the claim on account of defendant's absence. Gillman v. Cutts, 27 N. H., 348.

An absence from the state, though long continued, without evidence of abandonment of defendant's home within it, will not prevent the running of the statute of limitations. Drew v. Drew, Maine, 389.

Here the statute provided that time be not counted during the time the defendant "shall be absent from and reside out of the state."

In Vermont, where the statute provides that if the debtor be absent from and reside out of the state the time of such absence shall not be computed, etc., it was held in Hockett v. Kendall, 23 Ver., 272; that a debtor must be considered to be absent from home and reside out of the state within the meaning of the exception in the statute of limitations, when his domicile within the state is so broken up that it would not be competent to serve process upon him by leaving a copy there, and for that purpose there must be some place of abode which his family or effects exclusively maintain in his absence, and to which he may be expected soon or in some convenient time to return, so that a copy being left there and notice in fact proved, the plaintiff may take a valid judgment.

To the same effect is Hall v. Nasmith, 28 Ver., 788; Marble Co. v. Bliss, 57 Ver., 21.

In Minnesota the provision of the statute is that if after the cause of action accrues the defendant departs and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action.

In Venable v. Paulding, 19 Minn., 488, it was held that the departure from and residence out of the state to which such statute refers must not

Greene Common Pleas Court.

be merely temporary and occasional, but of such character and with such intent as to constitute a change of domicile, meaning by domicile in this connection the debtor's home or place of abode.

In Kerwin v. Sabin, 50 Minn., 320, it was held under the same statute that defendant had not resided out of the state so as to have interrupted the running of the statute of limitations. The circumstances being that, having an established residence and home in Minnesota, he was elected to the United States senate, and during the sessions of congress left his home in occupancy of servants, and taking his family to Washington kept house there in rented premises without intending to change his residence. In the intervals between the sessions of congress he returned to and occupied his home in Minnesota. The court say, on page 323, "His former home continued to be 'the house of his usual abode,' and by the terms of our statute under the circumstances shown by the evidence, a summons might have been served by leaving a copy there and an action be thereby effectually commenced against him."

In Connecticut the statute provided that in "computing the time limited in the several cases aforesaid, the time during which the party against whom there may be any such cause of action shall be without the state, shall be excluded from the computation."

In Sage v. Hawley, 16 Conn., 106, where the defendant left his family and property and went out of the state at different times in two successive years to one of the southern states, where he remained each time for the period of about eight months for the purpose of taking charge of a stock of goods and attending to the business thereof, intending at his departure and during his absence a temporary absence only and a speedy return to his residence in Connecticut, and without abandoning or intending to abandon his domicile there, it was held that the defendant was not without the state within the meaning of the statute of limitations.

The early statute of Iowa provided that if any person against whom there is or shall be a cause of action shall be out of this territory at the time of the cause of such action accruing, or at any time during which a suit might be sustained, then the person entitled to such action shall be at liberty to bring the same after his or their return to this territory, and the time of such person's absence shall not be taken as a part of the time limited for bringing the action.

In Penby v. Waterhouse, 1 Cole, Iowa, 497, it was held that the act did not mean a mere personal absence from the state when the wife and family remained during such absence at his usual place of residence, so that service of process could there be made, but such absence as entirely suspended the power of a party plaintiff to obtain personal service on the defendant in either of the methods provided by law.

In that state the provision for service of a summons was either a personal service, or by leaving at defendant's dwelling house or place of abode with some person of the family of fifteen years of age or upwards, and stating the contents to such person.

The court say, page 500: "To our mind the object of this eighth section was that a plaintiff should not be barred of his action by a lapse of six years if his right to his remedy was suspended by the absence of the defendant. When that right was not suspended, however, there is no reason why he should claim that time did not run. By the provision above referred to his right to proceed with his action and merge his demand into a judgment was just as perfect and complete when the serv

Lindsay v. Maxwell,

ice was made by copy left at the usual place of abode, as served by reading to the defendant. Where the family of the defendant remains at the usual place of abode and he is absent temporarily or on business, we do not think he is out of the state within the meaning of the said exception."

In this case defendant was out of the state from May 7, 1850, to February 25, 1853.

Later the statute of Iowa was changed, and the provision was that "the time during which the defendant is non-resident shall not be included in computing any of the periods of limitation above described."

In Drake v. Stewart, 87 Iowa, 341, it was held that the absence of a debtor from the state for successive brief periods of time for purposes of business where there is no purpose to change the place of residence, does not constitute non-residence under said section."

In Nebraska the statute is literally taken from the Ohio statute, and the manner of the service of a summons upon a defendant is the same as in this state.

In Blodgett v. Utley, 4 Nebraska, 25, it was held that the mere temporary absence of the debtor from the state when such debtor has a usual place of residence therein where service of summons can be had upon him, does not suspend the statute of limitations.

The court say, page 29: "It is clear, if we are to be governed by the strict literal language of the statute, that the several periods of absence of the plaintiff in error from the state must be deducted from the five years and ten months during which he has resided in the state, the action is not barred. Do the words 'depart from the state,' as used in section twenty, mean a mere temporary absence from the state while the debtor's usual place of residence is here, or are they intended to apply to such an absence from the state as entirely suspends the power of the plaintiff to commence this action? We think it was the intention of the legislature to give the creditor five full years to commence the action, and if during that period the right to proceed in our court to reduce the claim to judgment is suspended by reason of the absence or concealment of the debtor, the period of such absence shall not be computed as any part of the time within which an action may be brought. It is one of the grounds of attachment under the code that the debtor 'so conceals himself that a summons cannot be served upon him, and it is evident that the reason of the suspension of the statute of limitations in case of concealment is because service of summons cannot be had upon the debtor in consequence thereof."

In this case the absences from the state were numerous, and varied from three weeks to three months.

The court held that as service of a summons could have been had at any time at the usual place of residence of the defendant, the statute of limitations was not suspended during the periods he was out of the state.

This case was cited and approved in Omaha v. Parker, 33 Neb., 776, where it was held that to prevent the running of the statute of limitations against a party who has removed from the state, the absence must be such as will prevent the bringing of an action against him during such absence. If there is no suspension of the right to bring and maintain a suit, the running of the statute will not be interrupted.

The courts of other states have given a strict construction to statutes providing that absence from the state suspends the running of the statute of limitations, and have held that temporary absences toll the statute.

Greene Common Pleas Court.

In Kansas the statute is the same as the Ohio and Nebraska statute. In an early case of Lane v. Bank, 6 Kansas, 75, Lane was a United States senator, and was absent from the state during the sessions of the senate, but retained a furnished house and usual place of residence within the state.

It was held that such absences suspended the running of the statute during such periods.

This case is followed in Hoggett v. Emerson, 8 Kansas, 262; Conlon v. Lamphear, 37 Kansas, 341.

These cases were followed in Bauseman v. Blumb, 147 U. S., 647, in an action originally commenced in the U. S. Court of Kansas, the statute of limitations of the state, where the cause of action arose, being pleaded as a bar. But the court expressly held that it was bound in the construction of the statute of any state to follow the decision of the Supreme Court of such state.

In Kemp v. Bader, 6 S. W. Rep., (Tenn.) 126, atemporary absence of fifteen months was held to be included within the statute.

An early case in New York is to the same effect. Ruggles v. Keeler, 3 John, 263.

So also Wisconsin. Parker v. Kelly, 21; N. W., 539, where the court construed "shall be out of the state,' to include temporary absences, though during such times a summons might have been served at the usual place of abode.

Bennett v. Cook, 43 N. Y., does not support plaintiff's claim. In that case the defendant resided in Jersey City, but did business in New York City having an office there ten hours in the day time of every business day. The construction related to the other clause of the statute, "presence within the state." The court, instead of giving a strict construction to the statute, held that if the statute run at all during the presence of a non-resident, such presence must in any view of the case, amount in the aggregate to six years to render the defense available. The provisions of the clause of the statute of this state under consideration must be construed together. Three acts of the debtor after the cause of action accrues will toll the statute, viz., departing from the state, absconding, concealing himself.

That the words "abscond or conceal himself" should receive a strict construction will hardly be claimed. Suppose a debtor should conceal himself having a usual place of residence where a summons in an action could be served under the provisions of our statute, the mere fact of concealment not preventing the service of summons would not prevent the running of the statute.

This is the construction given the provision by the Supreme Court of Kansas in Hoggett v. Emerson, 8 Kansas, supra, where it is held that "absconding or concealing as used in the statute, relers to such conduct only as prevents the service of process in this state."

The object and purpose of the statute evidently is that the creditor shall have the full statutory time in which to commence an action. If by reason of the debtor's departure from the state, or his absconding or concealing himself, the creditor is prevented from commencing an action on his claim because of his inability to obtain service of process, then there is added to the statutory time the period during which his right to sue was suspended. But if at no time during the statutory period the right to sue is suspended, then there is no reason for an extension of time, because the creditor has had the benefit of the whole time. In