Blodgett v. Utley.

But it is not at all times an easy thing to determine whether particular testimony ought to be admitted or rejected, or whether if received, it should be given any weight in the decision of the case. The only safe rule undoubtedly is to require all the evidence to be preserved, and that the record shall disclose the fact that it has been done. But even if the rule were otherwise, and we should take the evidence contained in this record, as all that could have had any legitimate bearing on the issues presented, still I could not hesitate to declare that the finding of the judge is fully sustained, and that no other rational conclusion could have been drawn therefrom, than the one reached by him.

The judgment of the District Court is clearly right and must be in all things affirmed.

JUDGMENT AFFIRMED.

Mr.JUSTICE GANTT, concurred. Mr.JUSTICE MAXWELL, having tried the cause in the court below, did not sit.

HARRISON H. BLODGETT, PLAINTIFF IN ERROR, v. JOSEPH UTLEY, DEFENDANT IN ERROR.

1. Limitation of Action: ABSENCE. The mere temporary absence of a 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.

2.

The words "usual place of residence," mean the place of abode at the time of service.

ERROR to the district court of Lancaster County. This action was brought on a judgment rendered in the circuit court of Whiteside County, Illinois, on the 9th day of June, A. D. 1866. The cause was commenced in the district court on the 15th day of November, A. D. 1873. Blodgett, who was defendant there, plead the

Blodgett v. Utley.

statute of limitations, which provides that an action on a foreign judgment can only be brought within five years after the cause of action shall have accrued.

Gen'l Statutes, Sec. 10, p. 525. The following agreed statement of facts appears in the record brought to this court:

"On motion for a new trial, which was overruled, and on error from the district to the supreme court the following facts are agreed to by the parties, plaintiff and defendant:

That the defendant Harrison H. Blodgett came publicly into the state of Nebraska on the 15th day of January, A. D. 1868, and established a domicile; was temporarily absent from the state of Nebraska, four weeks in March, 1868, at Atchison, Kansas, and in different places in Missouri; was again temporarily absent three weeks in April and May, 1868, in different places in Illinois; returned to Nebraska, but was again temporarily absent in July and August, 1868, four weeks in different places in Illinois; then returned to Nebraska, and was again temporarily absent four weeks in November and December, 1868, in different places in Illinois; returned to Nebraska, but was again temporarily absent from the state for three weeks in February and March, 1869, at different places in Illinois and Iowa; again returned to Nebraska, and built a house in Otoe county in April, 1869, on land that defendant then owned. Afterwards, and up to the commencement of this action kept a furnished house there which was the usual place of residence of defendant. In August, 1871, defendant temporarily left the state of Nebraska, and stayed away two weeks in Hamburg, Iowa; returned to the state and was again absent in October and November, 1871, four weeks at different places in Iowa; returned to the state, and was again temporarily absent in the month of May, June, July, and August, 1872, at different times and different places in Missouri and Iowa, all together mak

Blodgett v Utley.

ing about three months; then returned to the state of Nebraska, and was again temporarily absent in October and November, 1872, in different places in Kansas for five weeks; that during each and every absence the defendant had a usual place of residence in different places in Nebraska, where service of summons could be had on him, and where at all times defendant had, in Otoe county, Nebraska, real estate subject to attachment; that aggregating these successive absences, and deducting from the period limited by the statute, the action was not barred; if not enough of these absences are to be deducted from that period then the action is barred."

Judgment being rendered against Blodgett for the amount claimed in the petition, he brought the cause here by petition in error.

H. H. Blodgett, the plaintiff in error, pro se.

The learned judge who tried this cause in the court below, gave the statute a literal construction, without paying any attention whatever to the service of process, therefore deducting temporary absences when the debtor was at all times subject to the jurisdiction of the state courts. But such a literal construction of the statute without giving any attention whatever to the service of process, the courts have never seen fit to give, but they have universally held that if personal service of summons could be had on the debtor during his absence, it was the legislative intent that the statute would run during such an absence; and the legislative intent will prevail over a literal construction of the statute. Penley v. Waterhouse, 1 Iowa, 498. Sage v. Hawley, 16 Conn., 106. White v. Campbell, 22 Mich., 193. Ford v. Babcock, 2 Sandf., 527. Gilman v. Cutts, 3 Foster,

376.

As the agreed statement of facts shows, the plaintiff

Blodgett v. Utley.

in error's absences were but flying temporary absences with a definite return, and that the plaintiff in error had at all times a usual place of residence where service of process could be had, therefore the court below erred in deducting temporary absences.

Pound & Burr, for defendant in error.

In cases which arise under the latter branch of section twenty, chapter 57, p. 526 of the General Statutes, successive absences may be accumulated, and the aggregate deducted from the period limited for the commencement of an action. Lane v. The National Bank of the Metropolis, 6 Kan., 74. Cole v. Jessup, 10 New York, 96. Phillips v. Holman, 26 Texas, 276. Vanlandingham v. Huston, 4 Gil., 125. Chenot v. Lefevre, 3 Gil., 637. Berrien v. Wright, 26 Barb., 208.

MAXWELL, J.

The agreed statement of facts on which this case was submitted sets forth that "during each and every absence the defendant had a usual place of residence in different places in Nebraska, where service of summons could be had on him."

Section twenty of the code of civil procedure provides as follows: "If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is 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." Section sixty-nine provides the mode of ser

Blodgett v. Utley.

vice of summons. "The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence at any time before the return day."

It is clear that 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 this state, in which case 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 his action? We think it was the intention of the legislature to give the creditor five full years to commence his action, and if during that period, the right to proceed in our courts to reduce the claim to judgment is suspended by reason of the absence or concealment of the debtor, the period of such absence should not be computed as any part of the time within which an action may be brought. It is one of the grounds for attachment under our code that the debtor "so conceals himself that summons cannot be served upon him," and it is evident that the reason of suspension of the statute of limitations, in case of concealment, is because service of summons cannot be had on the debtor in consequence thereof.

In the case of Sage v. Hawley, 16 Conn., 106, the court, in construing the words "without the state," say: "considering this provision as being designed to protect the rights of the plaintiff, in those cases where it was not practicable for him to enforce them by suit, in consequence of the absence of the defendant from the state, its justice and propriety are most obvious. But it is not necessary, nor does justice seem to require, that we should