Opinion
November, 1893.
M.A. Kursheedt, for plaintiff (respondent).
John J. Gleason, for defendant (appellant).
The alleged cause of action is upon a promissory note, by setting forth a copy of same, made by defendant to order of plaintiff, dated "Denver, August 27, 1883," and payable three months after date. The defendant by answer pleaded the Statute of Limitations of this state by alleging that this action was begun on November 3, 1892; that for six years prior thereto he had continuously resided in this state, and that the note sued on fell due more than six years prior to the commencement of the action. This cause of action accrued when the note fell due, and, hence, there is no merit in respondent's suggestion that the defendant must allege specifically that "the cause of action accrued," instead of that "the note fell due," more than six years prior to commencement of action. At trial, defendant, at the very threshold of his defense, was prevented from proving his continuous residence in this state for more than six years, under a ruling that the law of the state of New York was not applicable, but that the law of the state of Colorado was applicable, and to which he duly excepted. No suggestion in justification of this ruling is made, except in respondent's brief, that section 390 of the Code requires a defendant to plead the law of limitation of the foreign state, but this section, by express terms, applies to a nonresident defendant sued here to enable him to avail himself of his residence in the foreign state during the period of limitation there as a defense in the action against him here. But this defendant is not a nonresident, and alleges six years' continuous residence in this state; hence, he plead properly by setting up the Statute of Limitations of New York, for the plaintiff sought his remedy here; therefore, the defendant could avail himself of our Statute of Limitations, and had no concern whatever with the statute of the state where the contract was made. In the Engel Case, 102 N.Y. 400, Judge EARL, writing in the Court of Appeals, held that the defendant, who was sued in this state upon a bill of exchange accepted by him in Vienna, Austria, could plead successfully his residence here for six years, and our Statute of Limitations in bar of the cause of action, although he had absconded and fled from Vienna, and came and resided here under an assumed name for the purpose of concealing himself from his creditors. The decision in 1886 probably suggested the amendment of 1888 to section 401 of the Code, which now precludes a defendant who "resides within the state under a false name" from availing himself of our Statute of Limitations; but neither this, nor any other existing provision of the Code, disturbs the rule that a person who resides continuously under his true name in this state for six years prior to action against him on a note, bill of exchange or other cause of action enumerated in section 382, can, by pleading and proof, avail himself of our Statute of Limitations in bar of such cause of action. This defendant's pleading entitled him to make proof of the facts pleaded, and it was error to prevent him from doing so at trial. Judgment reversed and new trial granted, with costs to appellant to abide event.
NEWBURGER and McCARTHY, JJ., concur.
Judgment reversed, new trial granted, costs to abide event.