#### Weyburn & Briggs Company, Appellant, vs. Bemis, Respondent.

*May 13*

June *10, 1904.*

*Limitation of actions: AOs.ence of defendant from, state: Foreign corporation as plaintiff.*

See. 4231, Stats. 1898 (providing that if, after a canse of action has accrued against a person, he shall depart from and reside out of this state, the time of his absence shall not be taken as any part of the time limited for the commencement of an action against him in this state), is applicable where the plaintiff is a foreign corporation having the right to sue in the courts of this state upon the obligation in question.

Appeal from a judgment of the circuit court for Rock County: B. F. DuNwiddie, Circuit Judge.

*Reversed.*

*322Action commenced December 26, 1901, on a promissory note dated December 10, 1893, payable in sixty days to the. plaintiff, a foreign corporation, at tbe Bank of Lodi, Wisconsin; defendant tben being a resident of Wisconsin. He continued sucb until April, 1894, tben changed bis residence, first to Kansas, tben to Colorado, and did not return to Wisconsin until about September, 1901, where be again became a resident and was so at tbe commencement of the action.. Tbe only defense was tbe six-years statute of limitations. Tbe court held tbe action barred thereby, and rendered judgment dismissing tbe complaint, from which tbe plaintiff appeals.

For tbe appellant there was a brief by *Stanley D. Tallman,*attorney, and *F. D. McGowan,*of counsel, and oral argument by *Mr. McGowan.*

For tbe respondent there was a brief by *F ethers, Jeffris & Mouat,*and oral argument .by *M. G. Jeffris*and *M. 0. Mouat.*

They contended, *inter alia,*that sec. 4231 is an “exemption statute,” providing for exceptions from tbe provisions of sec. 4222 under certain circumstances, and tbe plaintiff, a foreign corporation, is not entitled to tbe benefit thereof. *Larson v. Aultman & T. Oo.*86 Wis. 281; *Travelers’ Ins. Go. v. Friche,*99 Wis. 367; *Nat. Banh v. Davis,*100 Wis. 240; *State v. Nat. Acc. Soc.*103 Wis. 208; *Pembina M. Co. v. Pennsylvania,*125 U. S. 181; 6 Thompson, Corp. §§ 7875, 7876.'

Dodge, J.

Defendant seeks immunity from suit upon an undisputed obligation solely on tbe ground of a statute of limitation. That statute accords sucb immunity only after tbe expiration of six years, and provides that in computing such term no period of ábsence shall be considered in favor of one who, residing here at tbe accrual of tbe cause of action, after-wards departs from and resides out of this state. Secs. 4222, 4231, Stats. 1898. Six years have not elapsed since this cause ■of action accrued, unless is counted tbe period of defendant’s *323absence after changing bis residence to another state. Clearly he has failed to prove the facts on which'alone the statute accords the immunity claimed.

It is urged that for some reason sec. 4231 should not apply, because the plaintiff is a foreign corporation. The statute makes no exception by reason of such fact, and the court cannot without usurping legislative functions. Both by statute and decision the right to sue in our courts upon such obli-gation as this is granted to foreign corporations (sec. 3207, Stats. 1898; *Chicago T. & T. Co. v. Bashford,*120 Wis. 281, 97 N. W. 940), and as plaintiff’s cause of action is fully established, it was entitled to judgment.

*By the Court.*— Judgment reversed, and cause remanded with directions to enter judgment for plaintiff in accordance with the prayer of the complaint.