If, at any time after the incurring of an indebtedness or liability or the accrual of a cause of action against him or the entry of judgment against him in this state, a debtor shall have been or shall be absent from or out of the state or concealed within the state, the time during which he may have been or may be out of or absent from the state or may have concealed or may conceal himself within the state shall not be included in computing any of the periods of limitation above provided.

History: Laws 1880, ch. 5, § 9; C.L. 1884, § 1868; C.L. 1897, § 2921; Laws 1903, ch. 62, § 1; Code 1915, § 3352; C.S. 1929, § 83-107; 1941 Comp., § 27-108; 1953 Comp., § 23-1-9.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Strict construction. — Although the law favors the right of action rather than the right of limitation, exceptions to statutes of limitation must be construed strictly. Slade v. Slade, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.

Liberal construction. — The law favors right of action rather than right of limitation, so that a statute which tolls the statute of limitations should be liberally construed to accomplish that purpose. In re Goldsworthy's Estate, 1941-NMSC-036, 45 N.M. 406, 115 P.2d 627.

"In this state". — In this section the qualifying phrase, "in this state," appearing after the phrase "entry of judgment against him," immediately preceding, does not extend to the more remote antecedent, "incurring of an indebtedness or liability or the accrual of a cause of action against him," under the doctrine of the last antecedent, by which expressions are to be applied to words or phrases immediately preceding them, for statutes are to be read according to their grammatical sense, unless something different apparently was intended. In re Goldsworthy's Estate, 1941-NMSC-036, 45 N.M. 406, 115 P.2d 627.

Section applies only to judgments rendered within state. Northcutt v. King, 1917-NMSC-083, 23 N.M. 515, 169 P. 473.

Section inapplicable to foreign judgment. — This section, which exempts application of the statute of limitations in the event of absence from the state or concealment within the state, applies only to judgments rendered within the state. Slade v. Slade, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627; Tenorio v. Cohen, 1981-NMCA-100, 96 N.M. 756, 635 P.2d 311, cert. denied, 97 N.M. 140, 637 P.2d 571.

Place of accrual of cause. — There is no apparent reason why the legislature intended to discriminate in application of statute tolling statute of limitations as to the place where cause of action accrued, in favor of its own citizens as against nonresidents, unless such intention is plain; so the fact that it arose out of state is sufficient to save the statute from running in favor of party to be charged until he comes within its jurisdiction. In re Goldsworthy's Estate, 1941-NMSC-036, 45 N.M. 406, 115 P.2d 627.

Residence at accrual of cause. — To come within the exception and to prevent the running of the statutes of limitation, the defendant must be a resident of the territory at time the cause of action accrues and depart thereafter. Heisel v. York, 1942-NMSC-009, 46 N.M. 210, 125 P.2d 717; Lindauer Mercantile Co. v. Boyd, 1902-NMSC-021, 11 N.M. 464, 70 P. 568.

Foreign residence. — This section applies to debtor's residence in another country at time of and since execution of note sued on. Bunton v. Abernathy, 1937-NMSC-084, 41 N.M. 684, 73 P.2d 810.

Section inapplicable where service obtainable. — The tolling statute should not be applied if a defendant could be served with process, either actual or substituted, as the purpose of the tolling statute was to prevent injustice by stopping the operation of the statute of limitations where there could be no service of process. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648; Tenorio v. Cohen, 1981-NMCA-100, 96 N.M. 756, 635 P.2d 311, cert. denied, 97 N.M. 140, 637 P.2d 571.

Failure to show impossibility of service bars application of section. — Where plaintiff did not attempt to serve personal process on defendants who were out of the country, did not attempt, what would apparently have been successful, substitute service of process on defendants, and did not even file the complaint within the applicable limitation period, the plaintiff has not met his burden of showing impossibility of service to make this section applicable. Tenorio v. Cohen, 1981-NMCA-100, 96 N.M. 756, 635 P.2d 311, cert. denied, 97 N.M. 140, 637 P.2d 571.

As under "long-arm" provisions. — If process could have been served under long-arm provisions, plaintiff would not be entitled to this statutory exception. Kennedy v. Lynch, 1973-NMSC-085, 85 N.M. 479, 513 P.2d 1261.

Service by long-arm statute. — Where there may be service, as under the "long-arm" statute, the tolling statute simply does not apply. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Burden on plaintiff. — When a party claims the benefit of an exception from the operation of the statute, the burden is on him to show that he is entitled to it; all presumptions are against him since his claim to exemption is against the current of the law and is founded upon exceptions. Kennedy v. Lynch, 1973-NMSC-085, 85 N.M. 479, 513 P.2d 1261.

Showing of impossibility required. — When the plaintiff relies upon the defendant's absence as interrupting the running of the statute, it is necessary for him to show such absence on the part of the defendant, and plaintiff must also show that it is not possible to serve process on the defendant. Kennedy v. Lynch, 1973-NMSC-085, 85 N.M. 479, 513 P.2d 1261.

Concealment not shown. — Where plaintiff was aware of defendant's location in foreign state, from which he made some payments, the fact that he had made no payments after job transfer to New Mexico was not sufficient by itself to establish concealment. Slade v. Slade, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.

This section is retrospective in operation. Orman v. Van Arsdell, 12 N.M. 344, 78 P. 48 (1904).

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Limitation of Actions §§ 154 to 169, 193.

Provision in statute of limitations as to absence from state as applied to a nonresident individual who has an office or place of business in the state, 61 A.L.R. 391.

Provision suspending limitations while defendant is a nonresident or without the state as affected by nonresidence of party asserting cause of action, 83 A.L.R. 271.

Nonresidence or absence of defendant from state as suspending or tolling statute of limitations where relief is sought, or could have been sought, by an action or proceeding in rem or quasi in rem, 119 A.L.R. 331.

Provision of statute of limitation excluding period of absence of debtor or defendant from state as applicable to action on liability or cause of action accruing out of state, 148 A.L.R. 732.

Right to enter judgment by confession as affecting suspension of statute of limitations during absence of debtor from state, 172 A.L.R. 997.

Provision of statute excluding period of defendant's absence from the state as is applicable to a local cause of action against individual who was a nonresident when the same arose, 17 A.L.R.2d 502.

Absence of judgment debtor from state as suspending or tolling running of period as to judgment, 27 A.L.R.2d 839.

Imprisonment of party to civil action as tolling statute of limitations, 77 A.L.R.3d 735.

When statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease, 1 A.L.R.4th 117.

54 C.J.S. Limitations of Actions §§ 98 to 104.