60-517. When defendant out of state. If when a cause of action accrues against a person he or she be out of the state, or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter.
History: L. 1963, ch. 303, 60-517; January 1, 1964.
Source or prior law:
G.S. 1868, ch. 80, § 21; L. 1905, ch. 328, § 1; L. 1909, ch. 182, § 20; R.S. 1923, 60-309.
Law Review and Bar Journal References:
"Enlarged Jurisdiction Under the New Code—The New Long Arm Statute," Leonard O. Thomas, 33 J.B.A.K. 85, 136 (1964).
"Some Comments on the New Code of Civil Procedure," Emmet A. Blaes, 12 K.L.R. 75, 77 (1963).
"Some Reflections on the Kansas Borrowing Statute," Robert L. Driscoll, 17 K.L.R. 437, 444 (1969).
"Tolling the Statute of Limitations: Restricted by Enlarged Personal Jurisdiction," L. Stephan Garlow, 18 W.L.J. 565 (1979).
"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 521, 522, 523 (1984).
"Walking the Legal Tightrope: Serving Timely Process When Filing State Claims in Federal Court," Matt Corbin and Casey Tourtillott, 73 J.K.B.A. No. 9, 28 (2004).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-309 and the 1961 Supp. thereto.
1. Action against out-of-state seller for breach of implied warranty barred; tolling provisions of statute inapplicable. Futura Music, Inc. v. Gates Radio Company, 399 F.2d 308, 310.
2. Paternity proceeding under K.S.A. 38-1101 dismissed for lack of jurisdiction without prejudice to commencement of future action. State, ex rel., v. Schutts, 217 Kan. 175, 181, 535 P.2d 982.
3. Referred to in determining tolling of statute of limitations a matter of computation; K.S.A. 60-206 inapplicable; private contract involved. Barnes v. Gideon, 1 Kan. App. 2d 517, 518, 571 P.2d 42.
4. Tolling provision hereunder not activated when substituted service available. Carter v. Kretschmer, 2 Kan. App. 2d 271, 272, 273, 577 P.2d 1211.
5. Failure to obtain service renders tolling provisions of K.S.A. 60-517 immaterial. Davila v. Vanderberg, 4 Kan. App. 2d 586, 588, 608 P.2d 1388.
6. Defendant's mere absence from state did not toll statute of limitations. Gideon v. Gates, 5 Kan. App. 2d 23, 24, 25, 27, 28, 30, 611 P.2d 166.
7. Absence from state means beyond reach of process from our courts. Bray v. Bayles, 4 Kan. App. 2d 596, 600, 601, 609 P.2d 1146. Reversed in part on other grounds: 228 Kan. 481, 484, 618 P.2d 807.
8. Where defendant conceals himself to avoid service of process, statute of limitations is tolled. Watson v. Jones, 227 Kan. 862, 864, 610 P.2d 619.
9. Statute not applicable to toll statute of limitations when substitute service of process available. Garrison v. Vu, 8 Kan. App. 2d 189, 191, 653 P.2d 824 (1982). Reversed, Garrison v. Vu, 233 Kan. 236, 238, 662 P.2d 1191 (1983).
10. Mere inability of plaintiff to locate defendant for service of process is not sufficient to establish concealment. Johnson v. Miller, 8 Kan. App. 2d 288, 289, 655 P.2d 475 (1983).
11. Clerical error by district court clerk in issuing alias summons; unique circumstances doctrine applied. Slayden v. Sixta, 250 Kan. 23, 24, 25, 26, 27, 825 P.2d 119 (1992).
12. Two-year statute of limitations has run; service too late; defendant was not concealing himself. Morris v. Morris, 27 Kan. App. 2d 1014, 10 P.3d 771 (2000).
13. Inability to locate defendant is not sufficient to establish concealment to avoid service of process. Hogue v. Johnson, 28 Kan. App. 2d 334, 17 P.3d 364 (1999).
14. Initial trial judge's ruling may be changed by subsequent trial judge; summary judgment granted. Hogue v. Johnson, 28 Kan. App. 2d 334, 17 P.3d 364 (1999).
15. Plaintiff's failure to prove defendant attempted to conceal its identity precluded tolling of limitations period. Lowe v. Surpas Resource Corp., 253 F. Supp. 2d 1209, 1251 (2003).
16. Defendant's death did not constitute act of concealment for statute of limitation purposes. Moore v. Luther ex rel. Luther, 291 F. Supp. 2d 1194, 1197 (2003).
17. Plaintiff did not show due diligence in discovering location of defendant; statute not tolled because defendant was attending college in Missouri part of time. Bayless v. Dieckhaus, 33 Kan. App. 2d 620, 106 P.3d 83 (2005).
18. Argument that statute of limitation was tolled; test discussed. Underhill v. Thompson, 37 Kan. App. 2d 870, 875, 876, 878, 158 P.3d 987 (2007).
19. Distinguished; statute of limitation of K.S.A. 60-1507 has no tolling provisions like K.S.A. 60-517. Clemons v. State, 39 Kan. App. 2d 561, 565, 182 P.3d 730 (2008).
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