32 F. 429 | U.S. Circuit Court for the District of Northern California | 1887
(orally.) This is a bill in equity to restrain the defendant from setting up a plea of the statute of limitations on a demand for money said to have been fraudulently obtained from the Chemical Bank, by Kissane and two other parties, more than 30 years ago, — as far back as 1855.
Tlio complainant here files a bill to restrain the defendant from setting up the plea of the statute of .limitations, Kissane having been a resident of this state for 30 years. The ground for relief is, that after defendant obtained this money, he went to Nicaragua, enlisted in Walker’s army, and changed his name, or rather added to his name. Ilis name being William Kissane, he took on the name of Rogers; so that the name he afterwards went by, was, William Kissane Rogers, or William K. Rogers, as he signed it. It is alleged in the bill, that it was publicly reported, or rumored, that Kissane was killed in Nicaragua; that complainant believed that report, and therefore did not hunt for him. Complainant now' says, that this change of name is a fraud upon complainant, and is a good equitable ground for restraining defendant from setting up the statute of limitations in a suit upon the demand. Undoubtedly, the old equity doctrine before the cases 'wore covered by statutes of limitations, was, that in a, certain class of cases, a party could be restrained on a bill in equity from setting up the statute of limitations.
On examination of those authorities, it will be found in all of them, T think, that there was some legal obstacle interposed by the party himself, or by the law, which prevented the prosecution of the suit. They were
Every one of those cases depends upon equitable doctrines, and they have since been carried into the statute of limitations of California. All those cases are laid down in the books. I held in Norris v. Haggin, 28 Fed. Rep. 282, and I still adhere to that opinion, that our statute provides for évery case where the statute of limitations can be made available, and for every case where the commencement of its operation will be postponed, or the time when it shall commence to run be delayed. It embodies certain exceptions to the general operation of its provisions, and these exceptions, so provided for, are all the exceptions intended by the legislature, and these exceptions are adopted from the equity practice. Our statute of limitations applies to courts of equity, as well as to courts of law, as is well settled by the supreme court of the state. See the authorities cited in Norris v. Haggin, supra.
The. courts of equity in this state, therefore, are no more authorized to interpolate into the statute other exceptions than courts of law. This' would be legislation'. The same provisions as to limitations, and the same exceptions as to their general operation, or postponing their operation, or fixing the time when, in exceptional cases, they shall begin to
A suspension of the running of the statute upon a demand already in suit, in which the judgment is reversed, and pending the suit the prescribed time has run, is covered by section 356. The most common case, perhaps, in which a court of equity interfered, and restrained the setting up of the statute, before the case was provided for by statutes, is provided for in section 356, in the following language: “When the commencement of an action is stayed by injunction, or statutory prohibition, the time of the continuance of the injunction, or prohibition, is not part of the time limited for the commencement of the action.” There are other provisions. Thus it is clear, that the legislature intended to provide for every case, wherein an exception to the immediate operation of the statute is intended, and it covers perhaps all cases, where courts of equity would interfere, before the statute, to restrain the sotting up of the statute. If it does not, it covers all cases intended to be covered, and the court is not authorized to add others. That would bo legislation. And the statute applies equally at law and in equity. All of these cases in a court of equity, where the party would, formerly, be restrained, are eases where there is some legal obstacle, or some equivalent acts in the way of plaintiff’s pursuing his remedy.
In tills case, there was no legal obstacle in the way, at all. It is true the man, in a certain sense, disguised himself by assuming an additional name, and moved into another state; but there is no legal obstacle to instituting a suit. All complainant had to do was to find the defendant. It was well aware of the cause of action. It was its own fault, or misfortune, if it was unable to find its debtor. If defendant had come into this state, and gone into some of its most secluded corners, without adding a name to his own, it is not likely, he would have been found, within the time allowed by the statute. I apprehend, that no one in that case, would have set up the fact, that he could not be found till the action was barred, as an equitable ground for restraining him from availing himself of the statute of limitations. So, if being bald-headed, he should put on a wig, or cultivate his beard in such way, or wear false whiskers, or in some other way disguise himself, in addition to moving to another state, or while staying in some secluded spot in the state, where his obligation was incurred, that would be no legal obstacle to bringing a suit.
Even imbecility of the creditor is stated by Story not to afford any excuse in equity for not commencing a suit within the time prescribed by the statute of limitations. Story, Eq. Jur. 1521a; Norris v. Haggin, 28 Fed. Rep. 282. Much less should a failure to hunt for a debtor by reason of belief in a public rumor that he is dead excuse neglect, and abrogate the statute.
Then, again, there is a technical ground against maintaining this bill. There is no allegation, that complainant has commenced a suit at law, or that defendant has attempted to set up the statute of limitations, or that he has even intended to set it up, should a suit be commenced. Non constat that he would set it up. Complainant cannot know that he will do it, until it commences a suit and ascertains. There is ho allegation of a threat to set it up. The bill only alleges that complainant believes the statute would be set up. This is insufficient. I do not think that complainant’s belief, or fears, without some facts indicating the purpose of , defendant, can constitute equitable grounds for relief. But there is no equity in the bill, and the objection is radical, and cannot be obviated by amendment.
The demurrer must be sustained, and the bill dismissed; and it is so ordered.