On Petition for a Eehearing.
Best, C.The appellee contends that the first paragraph ■of the complaint, to which a demurrer was sustained by the ■court below, shows upon its face that the cause of-action therein stated was barred by the statute of limitations, and that, therefore, the demurrer to it wras rightly sustained by the court; that this court, in the opinion reversing the judgment of the court below, failed to notice the question of the statute of limitations so presented for decision by the demurrer, and, therefore, erred in reversing the judgment upon the demurrer.
It is true that the question of the statute of limitations was fairly presented to this court for decision, and that it should have been, but, through some inadvertence, was not decided. If, as the appellee contends, it appears upon the face of the first paragraph of the complaint, that it is barred by the statute of limitations, and that none of the exceptions contained in the statute applies to the case, a rehearing should be granted. *555Section 216 of the statute of limitations of 1852, 2 R. S. 1876, p. 127 (section 297, R. S. 1881), is as follows:
“ The time during which the defendant is a non-resident of the State or absent on public business shall not be computed in any of the periods of limitation; but when a cause has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defence here as though it had arisen in this State: Provided, That the provisions of this section shall be construed to apply only to causes of action arising without this State.”
There is nothing in the first paragraph of the complaint .showing that the appellee, the defendant below, had not for .several years prior to the commencement of the suit resided out of the State or been absent on public business. If the section above set out applies to this case, it follows that the first paragraph of the complaint does not show upon its face that the cause of action is barred by the statute of limitations.
The appellee says, however, that the above section, by its terms, applies only to causes of action arising out of the State, .and othat, as in this case the complaint shows that the cause of action arose within this State, the demurrer presented the ■question, arid was rightly sustained.
The language of the proviso seems to limit this section to ■causes of action arising out of this State, but the section can not receive such construction. The first clause applies to all ■causes wherever arising, and whenever any statute of limitations of this State is relied upon, the period of time during which the defendant may have been a non-resident or absent on public business can not be computed as a part of the period of limitation. This was decided long before this statute was amended by adding the proviso. Lagow v. Neilson, 10 Ind. 183.
Shortly before this section was amended by the act of March 13th, 1875, it was held that the last clause of this section applies to a cause of action arising in this State, and that where a defendant has resided in another State long *556enough to create a bar by the statute of such State, an action in this State upon such cause of action may be defeated by pleading the statute of such other State. Harris v. Harris, 38 Ind. 423; Wright v. Johnson, 42 Ind. 29.
Immediately thereafter, this section was amended by adding the proviso, and this was evidently done for the purpose of limiting the last clause of said section to causes of action not arising in this State. Thus limited, full effect is given to each clause, and the whole is rendered consistent and reasonable. To otherwise construe it is to render the first clause inoperative. The last clause can not be made available but by pleading some other statute which renders the defendant’s residence elsewhere a bar, and it is absurd to talk about deducting the time of the defendant’s non-residence or absence ou public business from such period of limitation. If, therefore, such section only applies to such case, the first clause is without meaning. We do not think this statute thus limited, and therefore are of opinion that the cause of action does not appear to be barred by the statute of limitations.
We have carefully considered the other causes for which the appellee asks a rehearing. They present for bur consideration the questions considered in the original opinion. We are still satisfied with the opinion, and think the petition for a rehearing should be overruled.
Per Curiam. — Petition overruled.
Filed Jan. 11, 1884.