I am unable to agree with my associates. It is my opinion that the Bank's claim is barred by the statute of limitations.
Defendants Jones and Rambo continued to live in Johnson County after the motor company ceased to do business, as did the defendant Sutherland, until 1939, when he moved to Alabama. The proof shows that the bank could have obtained personal service of process on Sutherland on numerous occasions and that, besides owning property in Johnson County, he had funds on deposit with complainant sufficient to have covered the note. These facts were not controverted, the primary insistence being that Sutherland was a non-resident and that the note was kept alive by his promises to pay it. Under the circumstances, I think that the defendant's absence from the state was not such as to prevent the bank from suing him and having him personally served with process nor from legally attaching his property or funds.
In Spiegel Inc., v. Luster, 31 Tenn. App. 342,215 S.W.2d 16, 17, the Middle Section of this Court declared: "`Absence from the state and residence out of the state, in the sense of the statute (Sec. 8581), means such absence and such non-residence as renders it impracticable at all times to obtain service of process; . . . .' Turcott v. Yazoo M.V. Railroad, supra,101 Tenn. 105, 110, 45 S.W. [1067], 1069, [40 L.R.A. 768, 70 Am. St. Rep. 661]; Arrowood v. McMinn County, supra, 173 Tenn. [562], 567, 121 S.W.2d [566], 568, [119 A.L.R. 855]; see also numerous cases in Annotations, 94 A.L.R. 485; 119 A.L.R. 859." Also, Taylor v. McGill, 74 Tenn. 294. *Page 77
In Rowsey v. Burkhead, 3 Tenn. Civ. App. 361, the Court said:
"The holding in the Taylor-McGill case, while not involving the same statute involved in this case, is, we think, in principle controlling as to the question now under consideration.
"There it appeared that the land which it was sought to subject to the payment of the claim sued on could have been proceeded against notwithstanding the non-residence of the administratrix, and it was held that therefore the running of the statute was not arrested; and, in like manner, in the case at bar where the object is to subject lands to the payment of debts, it is equally apparent that the lands could have been proceeded against notwithstanding the non-residence of the principal debtor, and for like reason the running of the statute was not arrested."
Furthermore, I think recovery should be denied because of the Bank's laches or inexcusable delay which has placed Sutherland at a disadvantage with his former partners.