Chuchuru v. Chutchurru (185 F.2d 62, 1950)

BRATTON, Circuit Judge,

This was an action instituted by Jeanne M. Chut churra against Jean Chuchuru to recover upon two promissory notes. The cause was tried to the court without a jury, Judgment was entered for plaintiff, and defendant appealed. For convenience continued reference will be made to the parties as they were denominated in the trial court, plaintiff and defendant, respectively.

The first question presented is whether the suit was barred by limitation. One of the notes was due December 31, 1940, one was due January 1, 1941, and the suit was filed December 3, 1948. Plaintiff was at all material times a citizen, resident, and subject of the Republic of France. Section 1, chapter 102, Colorado Statutes Annotated 1935, provides that all actions founded upon contract shall be commenced within six years after the cause of action shall have accrued, and not afterwards; and section 16 provides that if any person entitled to bring any of the actions mentioned in the chapter shall, at the time the cause of action accrues, be within the age of twenty-one years, or a married woman, insane, imprisoned, or absent from the United States, such person may bring .the actions within the time the chapter respectively limited, after the disability shall be removed. It is the sett ed law in Colorado that courts look with favor upon statutes of limitation and construe them liberally. Van Diest v. Towle, 116 Colo. 204, 179 P.2d 984. On the other hand, it is the well estabhshed general rule that exceptions to the operation of a statute of limitation which toll its running in favor of persons under disability are to be stnctly construed, and never extended beyond their plain import. Kenyon v United Electric Railways Co., 51 R.I. 90, 151 A. 5; Bowman v. Lemon, 115 Ohio St. 326, 154 N.E. 317; Woodruff v. Shores 354 Mo 742 90 S.W.2d 994; Rowray v. McCarthy, 48 Wyo 108, 42 P.2d 54; Bock v. Collier, 175 Or. 145, 151 P.2d 732, 733.

Relying upon the rule that exceptions to the operation of a statute of limitation are to be strictly construed, plaintiff argues that in the enactment of section 16, supra, the legislature had in mind and intended to deal only with disabilities which are temporary in nature and may be removed at some time; that the disability of a non-resident of the United States is seldom temporary in nature; that the words “absent from the United States” connote a previous presence in the United States; and that since plaintiff is a non-resident of the United States and was never in the country, she does not come within the scope of the tolling provisions of the statute. The meanm£ words in a statute is frequently affected by their contort. Sometimes words which standing alone might have one mean-mS’ when ioined ^ others and veiwed in the h^ht of the entlre statute’ should be £iv~ en a wlder or more narrow meaning if it 18 apParent that the legislature intended to use them m that manner' But ordinarily, courts m the interpretation of statutes will Presume that the legislature intended to use words m their usual, everyday, well-under-8tood meaning. Old Colony Railroad Co. v. Commissionei, 284 U.S. 552, 52 S.Ct. 211, 76 L.Ed. 484; Deputy v. DuPont’ 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416; United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40.

Section 16 does not speak in speci_ fic terms of residents of Colorado or of the United States who are absent from the United States as distinguished from nonresidents. Neither does it contain langlmge whkh excludes by specific delinea. t¿on non_residents of the United States who bave never been jn tbe country. Instead, it merely provides in preSently pertinent part if ány person entitled tQ br¡ ac. tion mentioned in the chapter is absent from the United States at the time the cause o£ action accrues he may bring the action with-¡n tbe time 1¡mited in tbe chapter after the disabi]ity has been rem0ved. And in the absence of a more definite expression to that effect) we fail tQ, find any baPsis Qn whicb to conatrufi the particular provision in the stat- ^ as indicating a legislative purpose to include therein only residents of Colorado or of the United States who- are temporarily absent from the United States at the time of the accrual of the cause of action and to exclude therefrom non-residents. Field v. Dickinson, 3 Ark. 409; Wakefield v. Smart, 8 Ark. 488; Hall v. Little, 14 Mass. 203; Wilson v. Appleton, 17 Mass. 180; Goetz v. Voelinger, 99 Mass. 504; Wolf v. District Grand Lodge No. 6, etc., 102 Mich. 23, 60 N.W. 445; Keech v. Enriquez, 28 Fla. 597, 10 So. 91. And compare, United States v. Groathouse, 166 U.S. 601, 17 S.Ct. 701, 41 L.Ed. 1130. In reaching this conclusion, we are not unmindful of Wheeler v. Wheeler, 134 Ill. 522, 25 N.E. 588, on which defendant places strong reliance. That was a proceeding in equity to set aside a will. Two of the plaintiffs were residents of Ireland, one was a resident of Massachusetts, and the action was instituted under the seventh section of the statute of wills approximately fifteen years after the will was admitted to probate, The section of the statute, after authorizing a proceeding of that kind, provided that it should be filed within three years after the probate of the will, saving to infants, femes covert, persons absent from the state, and persons non compos mentis, a like period after the removal of their respective disabilities within which to institute the proceeding. The court expressly recognized the general rule that a provision tolling a statute of limitations with respect to persons absent from the state includes nonresidents. But, pointing out that unless authorized by statute, a court of equity does not have jurisdiction under its general chancery powers to entertain a bill to set aside a will and that where authorized by statute a proceeding of that kind must be instituted within the time limited for that purpose, and laying emphasis upon the marked manner in which the legislature of the state had established the policy of fácilitating the speedy settlement of estates with finality, the court held that the provision in the special statute authorizing a proceeding for the contest of a will within the time therein fixed, but saving to persons absent from the state a like period after the removal of their disability, did not include non-residents of the state. Manifestly that case is distinquishable from this one.

Defendant argues that in any event section 16, supra, was repealed by chapter 126, Laws of Colorado 1939. The statute enacted in 1939 is entitled “An Act Concerning the Application of Statutes of Limitations to Persons Under Legal Disability”. section one thereof defines the term “person under disability” to mean a minor, mental incompetent, or any person under any other legal disability. And with certain exceptions not having ‘any present material bearing, it may be said in general language that the subsequent sections of the act relate to the application of statutes of limitations to minors, mental incompetents, and persons under other legal disability, or their legal representatives. The statute contains a general repealing provision but none specifically repealing section 16, supra. A nonresident may be burdened with the impedíment of inconvenience or difficulty in respect to the institution of an action in the courts of Colorado. But non-residence standing alone and without more does not constitute a legal disability within the meaning of chapter 126, supra. Chapter 126 did not repeal section 16 insofar as the latter tolls the statute of limitation in relation to a person absent from the United States at the time of the accrual of the cause of action.

Even though section 16 does not toll the statute of limitations as toa foreigner who was never m thls country, or even thou£h section 16 was repealed by chapter Eaws of Colorado 1939, still the plea of limitation was not well founded. Section 2