Holley v. Coffee , 123 Ala. 406 ( 1898 )

McCLELLAN, C. J.

There is a judgment in the record overruling a demurrer to the complaint, but the demurrer does not appear in the transcript. We cannot review the action of the court in overruling it.

Plaintiff’s motion to strike pleas 3 and 4 and defendant’s motion to strike plaintiff’s replication to plea 1 do not appear by the bill of exceptions, nor are the rulings of the court thereon shown in the bill of exceptions. They cannot, therefore, be reviewed.

The replications, however, were good, and both the motion to strike, and the demurrer interposed after the motion to strike had been denied, were properly over-' ruled. A non-resiclent who has not been present in this State since the cause of action accrued for the period, or several periods aggregating the statutory period, within which a suit must be brought against one who has all along been in the State is within the saving influence of section 2805 of the Code: He is a person who has been “absent from the State during the period within which a suit might have been brought against him,” had he been here, and the time of his absence “must not be computed as a portion of the time necessary to create a bar.” State Bank v. Seawell, 18 Ala. 616; Wright v. Strauss & Co., 73 Ala. 227; Stevenson v. Anderson, 87 Ala. 228.

Of course, if this defendant had remained in Texas, where the contract sued on was made, until the statute of limitations of that State had barred the cause of action, he could have pleaded that statute in bar of this action. But it appears that he did not remain there, and he did not plead the statute of that State. He could not plead the statute of Florida, where he has continuously resided since he left Texas, because the contract was not made in that State. — Code, § 2808. Had he been sued in Florida, he could, of course, have pleaded the statute of that State, but no other under the facts shown. Being-sued hero, he is confined to the statute of this State, and that he has pleaded. But the replication, assuming its truth,' emasculates that plea. The notes sued on were executed on April 30, 1881, and payable respectively sixty days, four months and six months after date. This suit was brought on April 15, 1896. To the plea of the statute of limitations of six years, the plaintiff replied (1) that since the execution of said note's the defendant has not been in the State of Alabama for a period, aggregating six years, and (2) that the notes declared on were executed by defendant in Texas and were there payable, and that since the execution of said notes the defendant has been absent from the State of Alabama for a period aggregating more than twelve years. Each of these replications, when reference is had to the averments of the complaint as to the date of execution of tlie notes, shows that the defendant has not since the cause of action accrued been in this State either continuously or at different aggregated periods sufficiently long for the bar of our statute to be perfected; and on the principle announced above they were not open to any of the objections taken by the demurrer.

There was no error in admitting in evidence the table of rates of interest in other Btates printed in *the pamphlet acts of the General Assembly. — Code, § 1823, and case there cited.

There was no error in excluding the proposed testimony of Holley as to plaintiff having agreed to lock to Collins for this debt, and released him, etc. This evidence was not pertinent to any issue in the case when it was first offered. After a plea had been interposed under which it was pertinent, the Court allowed it to go to the jury.

Affirmed.