Bauserman v. Blunt

Statement by Mr. Justice GRAY:

This was an action brought February 13, 1886, in a court of the state of Kansas, by Elbridge G. Blunt, a citizen of Illinois, against Bauserman, a citizen of Kansas, and administrator of James G. Blunt, deceased, upon a promissory note for $3,204.34, made by James G. Blunt at Chicago, Ill., July 1, 1875, and payable to Elbridge G. Blunt in 1 day after date, with interest annually at the rate of 10 per cent.

The petition, after setting forth the making of the note at the time and place aforesaid, alleged that James G. Blunt, at the time of making the note, and for a long time before and after, was a citizen and resident of Kansas, and died intestate in July, 1881, leaving property in that state; that no administrator of his estate was appointed until the defendant was appointed administrator, on December 14, 1885; that James G. Blunt, after the making of the note, and before his death, was absent from and out of the state of Kansas, as well as the state of Illinois, 'for more than five years;' and that no part of the note, or of the interest thereon, had been paid, except $100 paid December 1, 1875, and indorsed on the note.

The defendant demurred to the petition, and assigned for cause of demurrer 'that said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against this defendant, and that it appears by the said petition that the alleged cause of action therein stated is barred by the statute of limitations.'

On March 13, 1886, the case was removed by the defendant into the circuit court of the United States, in which, on June 10, 1886, as appeared by its record, the following proceedings were had: 'Demurrer herein came on to be heard, and was argued by counsel, on consideration whereof the court doth overrule said demurrer; to which ruling and decision of the court said defendant duly excepts. It is ordered by the court that the defendant have sixty days from this date to file answer.'

On June 23, 1886, the defendant filed an answer setting up the statute of limitations, and alleging that the debtor, from the making of the note until his death, had his home and usual place of residence, where his family lived, and where process on him might have been served, in the city of Leavenworth, and state of Kansas, and that his absence from the state was only temporary, and with the intention of returning to that home and residence. The plaintiff filed a replication denying all the allegations of the answer, except as admitted in the petition, and alleging that the debtor, after the maturity of the note, and before his death, was out of the state of Kansas, and personally absent therefrom, for spaces of time aggregating the full period of five years, and that this action was commenced within one year after the appointment of an administrator of his estate. The parties afterwards, in writing, waived a trial by jury, and agreed that the action might be tried by the court.

The evidence at the trial tended to prove the following facts: The plaintiff and James G. Blunt were brothers. The note sued on was given at its date, in Chicago, in settlement for work previously done by the plaintiff for the maker; and the maker, a few days afterwards, left Chicago, and went to Washington, in the District of Columbia, and between that time and his death was absent from the state of Kansas more than five years, but during all this time, and for many years before, kept and maintained his usual place of residence and home in Kansas, open and occupied by his wife and children, and at which service of a summons might have been made on him. He died intestate July 25, 1881, and the defendant was duly appointed and qualified as his administrator by a probate court in Kansas on December 14, 1885.

The plaintiff relied on the following sections of chapter 80 of the Compiled Laws of Kansas of 1879 and 1885:

'Sec. 18. Civil actions, other than for the recovery of real property, can only be brought within the following period after the cause of action shall have accrued, and not afterwards: First. Within five years: An action upon any agreement, contract, or promise in writing.'

'Sec. 21. If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall 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 departs 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 defendant, to maintain the issues on his part, relied upon the following section of the same chapter:

'Sec. 64. 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.'

Also upon the following section of chapter 37 of those laws:

'Sec. 12. Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled thereto in the following order, to wit:

'First. His widow, or next of kin, or both, as the court may think proper; and if they do not voluntarily either take or renounce the administration within thirty days after the death of the intestate, they shall, if resident within the county, upon application of any one interested, be cited by the court or judge for that purpose.

'Second. If the persons so entitled to administration are incompetent or evidently unsuitable for the discharge of the trust, or if they neglect for twenty days after service of said citation, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.

'Third. If there be no such creditors, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other persons as it shall deem proper.'

Thereupon the court, on November 26, 1888, 'being of opinion that the personal absence of the debtor from the state of Kansas, notwithstanding his residence in the state, where service of a summons could be made on him, was sufficient to prevent the bar of the statute of limitations, and that the statute of limitations was suspended from the debtor's death until the appointment of his administrator,' found and adjudged that the plaintiff recover of the defendant the sum of $7,396.02, with interest at the yearly rate of 10 per cent. from that date, and allowed a bill of exceptions to that opinion and finding.

The defendant sued out this writ of error, and assigned as errors-First, that the petition and the matters therein contained were insufficient for the plaintiff to maintain his action; second, that by the record it appeared that the findings and judgment were given for the plaintiff, whereas, by law, they ought to have been given for the defendant.

J. H. Gilpatrick and Frank Hagerman, for plaintiff in error.

S. Shellabarger and J. M. Wilson, for defendant in error.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.