Rogers v. Hatch

By the Court, Rhodes, J.: The promissory note in suit was dated August 7th, 1860, payable thirty days from date; the action was commenced December 22d, 1870; and it is alleged in the complaint that the maker of the note (the defendant) departed from this State about the 1st day of January, 1862, and has since remained absent therefrom.

The defendant alleges that during every year from 1860 to and including the year 1870, he was in the City of San Francisco “ for weeks consecutively; ” and that he resided in said city, and had a place of business therein in the years 1863, 1864, and 1865, of all of which the plaintiff and his assignor had notice. 'The demurrer to the answer was sustained.

The twenty-second section of the Statute of Limitations is as follows: “If, when the cause of action shall accrue against a person, he is out of the State, the action may be commenced within the term herein limited after his return to the State; and if, after the cause of action shall have accrued, he depart the State, the time of his absence shall not be a part of the time limited for the commencement of the action.”

The question presented for determination involves the construction of the latter branch of that section—the question being, whether the successive absences from the State of the person against whom a cause of action accrued while he was in the State, shall be aggregated, and be deducted from the whole time which has elapsed since the cause of action accrued. There is no decision of this Court directly in point. The decision in Palmer v. Shaw, 16 Cal. 93, turned on the construction of the first branch of the section.

Our statute appears to have been copied substantially from S. 27, Stats, of Lim. R. S. of New York, the principal difference being, that the second clause of the statute of Hew [283]York provides for cases in which “such person shall depart from and reside out of this State.” It was repeatedly held in that State, that the successive absences of the defendant from the State should be accumulated, and the aggregate deducted from the whole time. (Burroughs v. Bloomer, 5 Den. 532; Cole v. Jessup, 10 N. Y. 107; Cutter v. Wright, 22 N. Y. 477.) We adopt that as the correct construction of the second clause of our statute. The place of the residence of the defendant, after he departed from the State, has no bearing on the question under consideration.

As the successive absences of the defendant from the State are to be aggregated, the position of the defendant, that as the statute would commence running upon his return to the State, it would not be interrupted by a second or further absence from the State, cannot be maintained. •