In Re Goldsworthy's Estate , 45 N.M. 406 ( 1941 )

Dissenting alone in this case, a position which I rarely take, leaves me in doubt as to the correctness of my position. The lone dissenter surely cannot believe that every one of his associates on the bench is out of step except himself in the reasoning employed in the particular case under consideration to reach the conclusion arrived at. Nevertheless, if my views accomplish nothing else but a legislative change in the statute under consideration, my lonesomeness will be rewarded and my self-accusation of doubt as to my position be dissipated in the accomplishment of that which I believe to be a desired result.

The trial court ruled that the claim was barred by the Statute of Limitations (1929 Comp.St., Sec. 83-104) and that the same was not tolled in the instant case as provided for by 1929 Comp.St., Sec. 83-107. In the case of Bunton v. Abernathy et al., 41 N.M. 684, 73 P.2d 810, we reviewed the history of the limitations statute from 1880 to the date of the opinion, Nov. 15, 1937. We there reviewed the cases of Lindauer Mercantile Co. v. Boyd,11 N.M. 464, 70 P. 568 and Orman v. Van Arsdell, 12 N.M. 344, 78 P. 48, 67 L.R.A. 438. Appellant contends that the case of Orman v. Van Arsdell, supra, and Bunton v. Abernathy, supra, support his theory that the statute was tolled in her favor. She quotes in support of her theory from the Bunton case [41 N.M. 684,73 P.2d 812], as follows: "The construction adopted by the court in Orman v. Van Arsdell, supra, is in line with what is said to be the weight of authority. In 17 R.C.L. 837, § 199, under `Limitation of Actions' the author says: `According to the generally accepted doctrine, if the statute provides that the period of limitation shall not run in favor of a debtor who is absent from or out of the state, the saving clause extends to foreigners, or those who have never resided in the state, as well as to citizens who may be temporarily absent. Whether the defendant be a resident of the state, and only absent for a time, or whether he resides altogether out of the state, is immaterial. He is equally within the proviso.'"

From this appellant argues that the limitations statute cannot aid the appellee because the decedent was a non-resident debtor and therefore the statute did not begin to operate in her favor until she came into the State of New Mexico. The Bunton case is not in point on the facts before us.

In the case of Lindauer v. Boyd, supra, decided in 1902, we construed the 1880 Act (Comp. Laws 1897, § 2921) which reads as follows: "2921. If, after a cause of action accrues, a defendant removes from the territory, the time during which he shall be a non-resident of the territory shall not be included in computing any of the periods of limitation above provided.", and held that the Statute of Limitations ran unless tolled by a definite exception, and to come within this exception, the defendant must, first, be a resident of the territory at the time the cause of action accrues, and second, depart thereafter. If this same rule and statute were in effect now there could be no doubt but that the present claim would be barred. However, the statute later was amended as we pointed out in Bunton v. Abernathy, supra.

The case of Orman v. Van Arsdell, supra, construed the amended statute. This amended statute is controlling here.

The legislature in amending the 1880 law intended to correct what they considered an evil situation brought to light in the Lindauer case. It was under the 1880 Act that a New Mexico creditor was precluded from collecting from non-residents (who had been out of the State for a period of more than six years) a bona fide debt incurred in New Mexico. That this desired result was obtained, is evident from our decision in the case of Orman v. Van Arsdell, supra, decided in 1904.

The essence of our decision in the case of Bunton v. Abernathy, following Orman v. Van Arsdell is this: After a cause of actionaccrues in this state the running of limitations will be tolled during the absence of the defendant from the state regardless of whether or not the defendant was non-resident at the date of the accrual of the cause of action.

As I view the facts of the case now before us, neither the Orman v. Van Arsdell or the Bunton v. Abernathy cases aid the appellant. In both the Orman v. Van Arsdell and the Bunton v. Abernathy cases the plaintiffs were residents of the State of New Mexico and the causes of action accrued within the State of New Mexico. In the instant case the appellant is not a resident of the State of New Mexico, and never has been, and the cause of action did not accrue in New Mexico, but in Missouri.

What we said in the case of Northcutt v. King, 23 N.M. 515,169 P. 473, 475, in so far as decisions of our own court are concerned, is more in point by way of analogy here than either the Van Arsdell or Bunton cases. In the case of Northcutt v. King, supra, the plaintiff had recovered a judgment against the defendants in Colorado in 1905. A suit on this judgment was instituted in the District Court of Otero county, New Mexico, in 1913. The defendants pleaded the seven year Statute of Limitations applicable to judgments. 1929 Comp.St., Sec. 83-102. The plaintiff in his reply set up the fact that the defendant had resided outside the State of New Mexico for the past seven years, and touching upon that phase of it we said: "Appellees' answer to the original complaint setting up the seven year's statute of limitations presents a complete defense to appellant's complaint under section 3347, Code 1915 [83-102, 1929 Complied Laws]. This being a foreign judgment, the question as to whether appellant, for seven years preceding the filing of the complaint, had been absent from or living within the state was wholly immaterial, as section 3352 [83-107 1929], which exempts the application of the statute of limitations because of absence from the state, applied only to judgments rendered within the state."

It seems to me that if Sec. 83-107 is available in tolling the limitations statute only to judgments rendered in this state, then in like manner it is available only to an indebtednessincurred in this state.

Eliminating the excess verbiage found in Sec. 83-107, and not applicable in the instant case, that part of the section applicable reads as follows: "If, at any time after the incurring of an indebtedness * * * in this state, a debtor * * * shall be absent from or out of the state or concealed within the state * * * shall not be included in computing any of the periods of limitation."

Thus it is seen that before this section is operative in the instant case the cause of action must have been incurred in thisstate. Since the present cause of action was incurred in Missouri the limitations statute is not tolled and the case is barred.

The only change caused by the 1903 amendment to the 1880 Act as I view it was to prevent non-residents, living elsewhere than in New Mexico during the period of limitation, from claiming the benefit of the Statute of Limitations as against a debt created, incurred or accrued in New Mexico and owed to a New Mexico creditor. The legislature did not intend by the amendment to allow non-residents to collect in New Mexico courts claims incurred or accrued in other states and which have there become stale, from debtors who have come into the State of New Mexico where service may be had upon them before the New Mexico limitation period has run. To hold with the appellant's view, a non-resident creditor with a claim incurred elsewhere and which is ten, twenty, forty or even fifty years old could maintain a suit on his claim in this State against any person who happens to come within our borders, and who has lived here for a period of time less than that provided by our statutes to bar such claim.

I do not believe the Legislature intended such a result. The majority have failed to give any satisfactory explanation why the tolling statute (Sec. 83-107) should operate only upon domestic judgments and not foreign judgments. The majority has failed to explain satisfactorily why the Legislature should favor causes of action, whether tort or contract, accruing in other states over adjudicated judgments arising out of tort or contract actions in such states. To my mind Sec. 83-107, as viewed from the four corners of the statute is applicable solely and only to causes of action as well as judgments accruing in this state, and none other. To my mind Sec. 83-107 shouts its message that absence or concealment tolls the periods of limitation only when the indebtedness or liability or cause of action or judgment was incurred in this State.

I present my views in dissent from the majority if for no other reason than to secure a legislative change.