Opinion
No. 30918
Decided June 4, 1947.
Limitation of actions — Promissory note with warrant of attorney to confess judgment — Section 11221, General Code — Fifteen-year limitation suspended by promisor's absence from state, when — Section 11228, General Code.
The Ohio promisee and holder of a cognovit note executed in Ohio, suing thereon, may invoke the saving provision of Section 11228, General Code, against the promisor who had left the state of Ohio and had become a resident of another state for a period of years, notwithstanding such absent promisor had executed a warrant of attorney to confess judgment on the note whereby personal judgment could have been rendered against him in Ohio without service of summons, in an action commenced within the 15-year limitation prescribed by Section 11221, General Code.
APPEAL from the Court of Appeals for Cuyahoga county.
The plaintiff, Commonwealth Loan Company, appellee herein, is a corporation in the city of Cleveland, authorized to make loans under the Ohio Small Loan Act. On August 5, 1926, the defendants, Samuel D. Firestine, appellant herein, hereinafter called Firestine, and Henrietta Firestine executed and delivered to plaintiff a cognovit note in the following form:
"140.00 Cleveland, Ohio, August 5th, 1926
"For value received, I, we, or either of us, promise to pay to the order of Commonwealth Loan Company, at the office of Commonwealth Loan Company, 837 Union Trust Building, Cleveland, Ohio, the sum of one hundred forty dollars, together with interest thereon at 3 per cent., per month, from date until paid. Said principal sum to be due and payable in 20 equal monthly installments of 7.00 each, payable on the 5 day of each month hereafter until fully paid. The last installment is due on the 5 day of April 1928. Interest shall be payable monthly, on the unpaid balance, at the time of the monthly payment of principal, and the makers may at their option, prepay all or any part of the unpaid balance of principal, and accrued interest, on any interest paying date. Failure to pay any installment of principal, or interest, when due shall cause the entire amount to become immediately due and collectible.
"The undersigned and each of them hereby authorize any attorney at law to appear in any court of record in the state of Ohio or in the United States after the above note becomes due under any of its conditions and waive the issuance and service of process and confess a judgment against the makers hereof and each of them in favor of the legal holder hereof for the amount then appearing due hereon, together with costs of suit, and thereupon to release all error and waive all right of appeal.
"Signed Samuel D. Firestine
"Signed Henrietta Firestine"
Payments were made on such note from time to time, the last payment having been made on March 7, 1930, leaving a balance of $75.59.
At the instance of plaintiff, the Municipal Court of the city of Cleveland on May 14, 1945, entered judgment by confession against the defendants for $119.39.
On June 5, 1945, Firestine filed a motion to vacate such judgment. In the answer tendered, the 15-year statute of limitation set forth in Section 11221, General Code, was interposed as a defense.
After hearing, the Municipal Court, on December 4, 1945, overruled the motion to vacate the cognovit judgment of May 14, 1945, and made an entry to that effect.
At the request of the defendants, the trial court made "Findings of Fact and Conclusions of Law." One of the facts found was that between March 7, 1930, the date of the last payment on the note, and May 14, 1945, when the cognovit judgment was taken, "said defendants had left the state of Ohio and maintained their residence in the state of Illinois, city of Chicago, for a period of approximately four years."
Such finding must be accepted as true, since there is no bill of exceptions in the record.
Upon appeal, the Court of Appeals affirmed the judgment of the Municipal Court.
The case is now here on its merits, pursuant to the allowance of the motion to certify the record.
Messrs. Kuth, Meyers Bradley, for appellee.
Mr. B. Bill Murad, for appellant.
Section 11221, General Code, recites:
"An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued."
Based upon such statute, Firestine's main contention is that, under the wording of the cognovit note in issue, plaintiff's cause of action against the defendants accrued within a short period subsequent to March 7, 1930, by reason of failure to make payments on the note according to its terms; that by virtue of the warrant of attorney in the note plaintiff could have obtained judgment by confession against the defendants at any time within 15 years after their default; and that by neglecting to do so until the 15-year period had elapsed defendants are protected against plaintiff's claim, by the terms of Section 11221, General Code.
Opposing such contention, plaintiff cites and relies on Section 11228, General Code, which reads:
"When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought."
Naturally the decision of this court must rest on the statutory law of Ohio, and the important question in the litigation is whether plaintiff may take advantage of the saving clause, contained in Section 11228, General Code, under the circumstances presented.
Most of our states have statutory provisions tolling the running of statutes of limitation during the absence or nonresidence of a defendant from the state. In the cases decided under statutes of this type, the majority of courts appear to have taken the position that even where absence or nonresidence occurs, if service of process can be obtained in the state enabling the plaintiff to institute an action on his claim, the period of defendant's absence should not be excluded from the-period of limitation, and the running of the statute is therefore not suspended during such absence. That result has often been reached in those instances where the defendant, although absent from the state for considerable periods of time, maintains a home or place of business in the state where service on him can be effectively obtained by leaving a copy of the summons at one of such establishments. 34 American Jurisprudence, 178, Section 221; annotation, 94 A.L.R., 485; annotation, 119 A. L. R., 859.
On the other hand, a number of cases hold that statutory provisions tolling the running of statutes of limitation during the absence of nonresidence of a defendant apply even if plaintiff could satisfy his claim during such absence or nonresidence by proceeding against property of the defendant located within the state. 34 American Jurisprudence, 180, Section 223; annotation, 119 A. L. R., 331.
In the case of Stanley v. Stanley, Admr., 47 Ohio St. 225, 24 N.E. 493, 8 L.R.A., 333, 21 Am. St. Rep., 806, this court had occasion to consider Section 4989, Revised Statutes, which is very similar in verbiage to present Section 11228, General Code. The following. language was used in the course of the opinion:
"The design of the statute is to give to the plaintiff the full period of the limitation, in available time, for the commencement of his action; so that, in ascertaining this period, the time the defendant is out of the state, is not computed as any part of the time given him in which to commence his action. * * *
"The first clause [of the statute] provides for the case where the defendant is absent from the state when the cause of action accrues; the second for the case where he departs from the state after it has accrued. In the first, the statute begins to run when he comes into the state; in the second, it ceases to run, and is suspended, until he returns to the state. The purpose, then, of the statute is perfectly plain: Presence of the defendant within the state, so that he may be sued, avails in his favor; absence from the state, whether at the accruing of the action or afterwards, suspends the running of the statute."
There is a dearth of authority on the precise question involved in the instant controversy. The case nearest in point which we have been able to find is that of Hibernian Banking Assn. v. Commercial National Bank of Chicago, 157 Ill. 524, 41 N.E. 919. In that case the Illinois statute (Rev. St. 1893, c. 83, Section 18) declared that the time of a person's absence from the state should be deducted from the time limited for suit against him. The Illinois court applied the statute even though the absent person had executed a warrant of attorney under which personal judgment could have been rendered against him without service of process.
Discussing this proposition, the court said in the opinion:
"While it may be true that the reason for the exception created by section 18 of the statute does not exist in full force when applied to this case, inasmuch as the absence of Caulfield from the state did not prevent foreclosure of the mortgage or the obtaining of a personal judgment against him, by confession, prior to his death, still, as the case comes within the express language of the exception, we cannot assume the province of the Legislature and say that the exception ought not to apply, and that although having departed from the state after the cause of action accrued, and residing in another state, he, having substituted certain supposed equivalents for his presence in this state, should be treated as present, within the meaning of the statute."
What was said by the Illinois court can be said with equal force here. Section 11228, General Code, provides in unequivocal terms, without qualification or exception, that if a person, after the accrual of a cause of action against him, departs from the state, the time of his absence shall not be computed as any part of a period within which the action must be brought.
Had the General Assembly intended to remove from the operation of the statute those causes of action against persons absent from the state but against whom judgment might be taken by confession, it could have done so by the use of appropriate language. If this court were to exempt these defendants from the terms of the statute, it would be doing that which the General Assembly has not seen fit to do and would be indulging in judicial legislation.
For the reasons stated, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, SOHNGEN and STEWART, JJ., concur.