13-80-118. Absence or concealment of a party subject to suit.

Statute text

If, when a cause of action accrues against a person, the person is out of this state and not subject to service of process or has concealed himself, the period limited for the commencement of the action by any statute of limitations shall not begin to run until he comes into this state or while he is so concealed. If, after the cause of action accrues, he departs from this state and is not subject to service of process or conceals himself, the time of his absence while not subject to service of process or the time of his concealment while not subject to service of process shall not be computed as a part of the period within which the action must be brought.

History

Source: L. 86: Entire article R&RE, p. 701, 1, effective July 1.

Annotations

Editor's note: This section is similar to former 13-80-126 as it existed prior to 1986.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Enforcement of Justice Court Judgments", see 12 Dicta 274 (1935). For note, "Does Physical Non-Presence Toll the Statute of Limitations?", see 13 Rocky Mt. L. Rev. 152 (1941). For article, "Another Decade of Colorado Conflicts", see 33 Rocky Mt. L. Rev. 139 (1961).

Annotator's note. Since 13-80-118 is similar to former 13-80-126 as it existed prior to this 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.

This section tolls statute of limitations until defendant enters Colorado. A suit on a foreign judgment based upon a cause of action accruing more than six years prior to the filing of an action thereon in Colorado, and more than three months after the entry thereof, would be barred by the provisions of 13-80-121, except for the provisions of this section, which tolled the running of the statute until defendant came into the state of Colorado. Blackmon v. Klein, 144 Colo. 461, 357 P.2d 91 (1960).

Plaintiff must show statute has been tolled. The statute of limitations having been pleaded in bar and prima facie appearing to be a bar from the note set out in the complaint, the burden shifted to plaintiff to establish that the statute had been tolled. Smith v. Kent Oil Co., 128 Colo. 80, 261 P.2d 149 (1953); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961).

This section is limited in its provisions to causes of action in personam, and is wholly inapplicable to actions in rem or actions quasi in rem. Fastenau v. Asher, 124 Colo. 161, 235 P.2d 587 (1951).

This section specifically fixes time when period of limitation begins to run. Jones v. O'Connell, 87 Colo. 103, 285 P. 762 (1930).

This section is clearly a statute of limitations. Jones v. O'Connell, 87 Colo. 103, 285 P. 762 (1930).

Mere fact that person moved to another state did not constitute an effort to conceal himself or herself in an effort to avoid service. McGee v. Hardina, 140 P.3d 165 (Colo. App. 2005).

It applies only to absence from state of Colorado. This section applies to absence from the state of Colorado, not to absence from another state or from a territory or foreign country. If the section were intended to cover the latter situation, it would have said "out of the state, territory, or foreign country where the cause of action accrued", and "depart from such state, territory, or foreign country". Simon v. Wilnes, 97 Colo. 78, 47 P.2d 406 (1935)(concurring opinion).

Amendment to former 13-80-126 not retroactive. Because this section is a tolling statute and is remedial in nature, it should not be given retroactive application; thus, in any suit where the cause of action accrued prior to the effective date of the amendment of the former section, the action should be controlled by this section as it read prior to the amendment. United Bank of Denver Nat'l Ass'n v. Wright, 660 P.2d 510 (Colo. App. 1983).

This section does not toll limitation period for wrongful death action. The Colorado wrongful death act is not a "statute of limitations but a statute of creation." Thus this action will not toll the two-year period in which one has to commence a wrongful death action. Nelson v. Hall, 573 F. Supp. 1097 (D. Colo. 1983).

Applied in Kendall v. Costa, 659 P.2d 715 (Colo. App. 1982).