64 Barb. 506 | N.Y. Sup. Ct. | 1873
This was a suit in equity, commenced before the Code, by filing a bill and issuing a subpoena to answer, on the 38th day of June, 1848. The cause of action, and grounds of equitable jurisdiction, set up in the complaint, are founded upon certain
As before stated, the bill was filed June 28, 1848. Reynolds, Samson and Bush appeared in the suit. Both Bush and Samson answered, but the purport of such answers does not appear. Reynolds never answered, and although his solicitors were served with a copy of the bill and notice of an order to answer, in December, 1848, no order pro confesso was ever entered against him, and no further steps appear to have been taken in the cause until the motion, on which this appeal arises, was made, in July, 1872, twenty-four years after any movement had been made in the cause, and thirty-seven years after the transaction upon which the complaint was based occurred, and after the bonds of which reformation was sought were executed. In the mean time, as was to have been expected, a majority of the parties to the transaction, together with the solicitors and counsel connected with the original suit, and probably most of those who had any actual knowledge of the transactions sought to be investigated, or of the suit itself, have died. Bbenezer S. Beach, the complainant, died in March, 1850, about fifteen months after he became entitled to
From this order the defendant Reynolds appeals.
The first question which presents itself on this appeal is, whether the justice at the Special Term was correct in the position that the petitioner had an absolute right to revive and continue the suit, so that the court could not legally deny his motion for that purpose.
The proposed supplemental complaint, accompanying the petition in this case, is what under the former practice of the court of chancery would have been a mere bill of revivor. It is founded simply on the death of the original plaintiff and the succession to his rights claimed by the petitioner Hewett, as administrator de bonis non, with the will annexed, and this death, and succession of interest is the only matter which has happened since the filing of the bill which the party claiming to have succeeded to the rights of the original complainant seeks to bring before the court. Such a bill, that is, a simple bill of revivor, might have been filed, under the former practice, without leave of the court. (Mitford's Eq. Pl. 69. 2 Barb. Ch. Pr. 35. 3 Paige, 206.) What was known under the former practice as a supplemental bill, was a bill designed to bring
The prayer of the bill of revivor was that the suit be revived, and this relief was denied or granted, by the court, upon the hearing on the bill of revivor. To the bill of revivor the defendant might interpose a demurrer, answer or plea founded upon objections to the bill of revivor itself. So that, in fact, the bill of revivor was nothing more, in effect, than a more formal petition for leave to revive and continue the suit, to which the defendant might object in the more formal manner of demurrer or plea, instead of by affidavit merely.
A consideration of this feature of the former practice, throws some light upon the. proper construction of the 121st section of the Code. The section is in substance as fpllows: “No action shall abate by the death,” &c., “of a party, ” &c., “if the cause of action survive or continue. ” “In case of death, ’ ’ &c., “ of a party, the court on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest.” As originally adopted, the section only provided for the continuance by motion, to be made within a year. The words “or afterwards on a supplemental complaint,” were added in 1849. Under this section the General Term of the first district
This seems to us entirely clear from the language of the section itself, taken in connection with the rules of practice in equity, which had previously existed, and with which the framers of the Code were entirely fami
To hold that the action may be continued on the supplemental complaint mentioned in the 121st section of the Code, without any allowance by the court, seems to us to be doing violence to the plain language of the section ; and to hold that, where the court must be applied to for leave and allowance, it has not the power to refuse, is to convict the framers of the Code of a manifest absurdity. We are therefore of the opinion that the design was to do away with the practice which had prevailed in regard to mere bills of revivor, and substitute in its place the practice of equity in reference to supplemental bills. In support of this construction it is not unworthy of notice that the codifiers adopted the'name- “ supplemental complaint,” which was the precise name by which, in courts of equity, that class of complaints, to file which required the leave of the cqurt, had been known. In determining the true construction of section 121, it is proper to bring into juxtaposition with it another section in pari materia. Section 177 provides that “the plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case, occurring afte* the former complaint, answer or reply, or of which the party was ignorant when his former plead
The language of section 121 is: “ The court on motion, ’ ’ &c., “may allow.” That of section 177 is, “the plaintiffs,” &c., “may be allowed on motion.” We are unable to perceive any shadow of difference between the provisions of these two sections, as to the power of the court, and even if we were not otherwise convinced that the decisions in the first district, which have been referred to, were erroneous, we must hold them to be, in
Having arrived at the conclusion that the court has
It will be recollected that under the Revised Statutes, in certain cases, a revivor of a suit in chancery might be had upon petition, and without a formal bill of revivor ; and it was held that in such cases the same objections might be shown in opposition to the petition to revive under the statute, which could be raised to a formal bill of revivor by demurrer or plea, (Wash. Ins. Co. v. Slee, 2 Paige 365;) and this seems necessarily to follow from the nature of the change in the practice.
The appellant’s counsel relies upon three objections to the revival and continuance of this suit, viz: 1. Objections to the original bill. 2. Laches in the attempt to revive. 3. The statute of limitations. It is suggested that there was really no sufficient ground for the interference of a court of equity set forth in the original bill; and it is further claimed that the statute of limitations was a bar to the cause of action, if any, which was set forth in the original bill. The objection, at aE events, seems to be well founded in fact. As has been before stated, the only ground upon which the jurisdiction of a court of equity seems to be claimed, upon the facts stated in the biE, is to have the bonds of the parties reformed, if the court shaE be of the opinion that they do not sufficiently or accurately express what is claimed to have been the parol agreement. Whether this constituted a ground for relief in equity, in the absence of any allegation of fraud, accident or mistake, it is not necessary to discuss. If it be a cause of action, it undoubtedly accrued when the bonds were made, in 1835, or at least when Beach & Bush tendered to Reynolds and his associates a reassignment of the bond
The remaining two objections are distinctly to the right to revive, and therefore to be considered on the motion for that purpose. The appellant first invokes the well known equitable doctrine in regard to laches. The principles of courts of equity on this subject are well set forth in Angelí on Limitations at the passages to which we have been referred. (Ang. on Lim. § 25 and note, §§ 11, 171. See also, Smith v. Clay, 3 Bro. Ch. Cas. 640, note.) The case of Hercy v. Dinwoodie, (4 Bro. Ch. Cas. 257,) affords an instance of the application of the doctrine of laches to a bill of revivor. (See also, Pendleton v. Fay, 3 Paige 206.)
In Medbury v. Swan, before referred to, (46 N. Y. 200,) the cause of action was at law. The defendant was discharged in bankruptcy, after the commencement of the suit, and in May, 1868. In the latter part of 1869, he applied for permission to interpose a supplemental answer setting up his discharge in bankruptcy. This permission had been denied in the Supreme Court, and Judge Allen, delivering the opinion of the Court of Appeals, said that a delay of fifteen months before any step was taken with a view to setting up the discharge, was “unanswerable.” To this objection of laches the respondent answers that the defendant might have protected himself against it, since the same 121st sec
The petitioner in this case further puts forward, as an excuse for the extraordinary laches which has prevailed in this case, the alleged fact that the defendants were, or were supposed to be, insolvent during the greater portion of the time, during which this delay has occurred. This of itself, can hardly be received as a valid excuse for this long delay. The maxim of both courts of law and equity is, “interest reipublieoe ut sit finis litium. ’ ’
The policy of the court is against the raking up of stale demands, and mousing in the charnel houses of abandoned claims. The statutes of limitations in analogy to which courts of equity act, contain no exception by which their operation is suspended in cases of insolvency. If, therefore, there were no statute of limitations directly binding upon courts of equity, as was the case in most instances where the objection of laches has been invoked, this case would seem to be one in which the application to revive and continue the suit, under all the circumstances, should be refused on the ground of unreasonable delay. Since courts of equity in this State have been expressly embraced within and bound by positive statutes of limitations, they have been in most instances relieved from the attempt to apply the doctrine of laches, and from the necessity of con
If we are right as to the nature of the cause of action intended to be asserted in the bill of complaint in this action, it is an action for relief falling within the 97th section of the Code, which took effect in July, 1848, and must be commenced within ten years after the cause of action shall have accrued. ' The counsel for the respondent, in his points, claims that the limitation applicable to the action is twenty years. He states no, ground upon which he bases such a claim, and we are - unable to perceive any reason for it. But whether the limitation be ten or twenty years is immaterial, as both periods have expired, not only since the cause of action arose, but since the time when it became necessary to revive the action, and proper parties to revive it were in existence, and in a condition to proceed. Letters testamentary under the will of the original complainant were granted to his executors in May, 1850, more than twenty-two years before this attempt to revive the action.
The statute having once commenced to run was not suspended by the death of the executors, even if the fact were that they had both died before the limitation expired.
The statute having "once commenced to run, is suspended by death only in the cases and to the extent expressly provided by the same or some other statute. Disabilities cannot be tacked to disabilities. If they could be, the statute" might be suspended for a hundred years or more. It remains, therefore, to inquire whether the statute of limitations is applicable to an attempt to revive and continue a suit. There seems to be no reason why it should not be. The same policy upon which statutes of limitations are based, as applicable to other cases, seems to apply, with at least equal force, to a suit which, though in a situation tó be revived, has lain unrevived and abandoned through the period which
If the foregoing views are correct, the conclusion follows that the prayer of the petition for leave to revive and continue the suit, should have been denied.
It is further to be observed that if the decisions in Bornsdorff v. Lord, and Roach v. La Farge, (supra), upon which, as we are given to understand, the decision below went, are to be followed, then the motion should also have been denied. For in each of those cases the General Term affirmed the order of the Special Term, denying the motion.
The order appealed from must be reversed, and motion denied as to the appellant Reynolds, who alone appeals, with $10 costs of appeal to be paid by the petitioner,
Affirmed by the Court of Appeals, May Term, 1873.