Eingartner v. Illinois Steel Co.
79 N.W. 433
Wis.
1899
Check Treatment
Maeshall, J.

This is the sole question we are called upon to decide in this case: If a citizen of a sister state, having a •claim against another such citizen, allow the period limited by laiv for its enforcement in the courts of such stаte to expire, can he then come into this state and enforce such claim in its courts if the necessary service can be obtained to give the court jurisdiction of the defendant in the action?

It is concеded that the effect of the statute of limitations of this state extinguishes the right upon which it has com-plétely operated. Brown v. Parker, 28 Wis. 21; Knox v. Cleveland, 13 Wis. 245; Sprecher v. Wakeley, 11 Wis. 432; Kahn v. Lesser, 97 Wis. 217. It is further conceded that if the statute of limitations of the state of Illinois has the same effect, plaintiff’s claim was extinguished before this action was commenced, and hence defendant was entitled to the judgment rendered-. It is the universal rule that so long as a limitation act operates on the remedy only, the lаw of the forum governs. When the right itself has been extinguished by the effect of the limitation act upon it, such effect attaches to and becomes inseparable from such right in the courts of this state.

Expressions of like chаracter as above are found in numerous adjudications, yet the subject is frequently reviewed by the courts for want of an accurate understanding of terms. In Baker v. Stonebraker, 36 Mo. 338, this statement of the rule was made: “ The doctrine is well established thаt where the limitation operates to extinguish the contract or debt, the ‍​‌‌​‌‌‌‌​​‌​​​​‌‌​​​​‌‌​‌‌​​‌​​‌‌‌‌‌​​​​​​‌​​‌​‌‍case no longer falls within the law of limitations on the remedy merely. In such cases when the debt or judgment is sued on in another state, the lex loci contractus and not the *376lex fori is to govern.” Tо the same effect are Story, Conflict of Laws, § 582; Shelby v. Guy, 11 Wheat. 361; Perkins v. Guy, 55 Miss. 153; Woodman v. Fulton, 47 Miss. 682; McCracken Co. v. Mercantile T. Co. 84 Ky. 344; Wires v. Farr, 25 Vt. 41; Whitehurst v. Dey, 90 N. C. 542; Wood, Limitations, § 13.

What is meant by the term “ extinguish the right ” as used in the adjudications and by the text writers, in discussing the subject under consideration, is not actual satisfaction of the right by the operation of the statute of limitations. The-idea is that a right to insist upon the statutory bar is a vested property right protected by the constitution, the effect of which is to forever prevent the judicial enforcement of the-demand affected by it, against the will of the owner of the-prescriptive right. Deprivation of the remedy under such circumstances that there can be no adverse restoration of it. is a destruction or extinguishment of the right to which suсh remedy relates. The law deals only with enforceable rights, and if such a right be changed to a mere moral obligation,, in a legal sense it no longer exists at all.

It follows necessarily that when a defense to a right has-become vested beyond recall without consent of the person in whose favor it operates, so that his adversary is powerless, to enforce such right beyond power of adverse restoration, it is, to all intents and purposes, as effectually satisfied as if' paid or otherwise discharged. As the court put it in Woodman v. Fulton, supra, 'The bar created by the statute of' limitations is as effectual as payment or any other defense, and when once vested cannot be taken away even by the legislature.’ That is the doctrine of this court expressed in many cases. In Sprecher v. Wakeley, 11 Wis. 432, this rule-was approved as to the effect of a completed limitation period upon the title to property. A bar produced by operation ‍​‌‌​‌‌‌‌​​‌​​​​‌‌​​​​‌‌​‌‌​​‌​​‌‌‌‌‌​​​​​​‌​​‌​‌‍of the statute of limitations to an action upon a contract is as effectual as payment or any other defense, and although. *377it is a generаl principle that the statute bars only the remedy and does not destroy the right, yet where the defense has^ been vested no subsequent renewal of the right to sue, as by repeal of the statute or otherwise, without consеnt of the j>arty entitled to the defense, operates to take away or destroy such, defense. In Brown v. Parker, 28 Wis. 21, the rule was decided to apply to property rights as well as to tangible property, on the ground that a vested right of defense is itself property and supersedes, annuls, and extinguishes that upon which it operates. That doctrine has ever since been the law of this state, and it is now too firmly entrenched in our jurisprudence to be open to question, whatever may be the individual or even collective opinions of judges as to whether the question was settled right or wrong originally. Pleasants v. Rohrer, 17 Wis. 577; Austin v. Saveland’s Estate, 77 Wis. 108; Howell v. Howell, 15 Wis. 55;, Lindsay v. Fay, 28 Wis. 177; Arimond v. Green Bay & M. C. Co. 31 Wis. 316; Carpenter v. State, 41 Wis. 36; Pierce v. Seymour, 52 Wis. 272. Nevertheless we should say that the' logic of the opinion in Brown v. Parker, and in the cases which preceded and followed, treating of the subject, is far-more satisfactory than that of decisions elsewhere holding that there cannot be a property right in a defense and that one’s financial safety, so far as relates to money demands, is-hedged about by state lines, and even there, may be the-subject of' legislative interference. The reasoning that gives to limitation acts, as regards all property, interеsts, and claims, the effect of an ‍​‌‌​‌‌‌‌​​‌​​​​‌‌​​​​‌‌​‌‌​​‌​​‌‌‌‌‌​​​​​​‌​​‌​‌‍irrevocable sentence of silence which is protected as property by constitutional guarantees, treasonable in our judgment. We are not unmindful of the fact that this doсtrine is not sustained by the supreme court of the United States, but that cannot change our views at this-late day as to the effect of our own statute, nor as to the-effect in this state of the statutes of a sister state, which have-received at home the same construction given to similar *378statutes here. As said in Pierce v. Seymour, supra, it is the settled law in this state that a completed statutory period of limitations upon the enforcement of a claim not only takes away the rеmedy for such enforcement, but the claim also.

The foregoing conclusion differs from -the views of the federal supreme court, as before indicated, in that it is there beld that a mere defense of the statute of limitаtions is not a property right upon which constitutional guarantees can operate; that unless coupled with title to property the bar of the statute in one jurisdiction will not be effective in another ; that as to mere money demands it operates on the remedy only, and the law of the forum governs. It is there recognized, as held in this opinion, that the point of difference between the two doctrines is whether a defense of the statutory bar to the enforcement of a right is itself property, and that the effect of an affirmative holding is that such property right extinguishes the right upon which it operates. In the leading case on the subject, Campbell v. Holt, 115 U. S. 620, the сourt divided. Justice Millee, who delivered the opinion upon which the decision was based, remarked: “We are unable to see how a man can be said to have a property right in the bar of the statute as a defense to his promise to pay. In the most liberal extension of the use of the word ‘property’ it is new to call the defense of lapse of time, to the obligation to pay money, property.” On the other hand, Justice Beadley, with whom Justice IIaelaN concurred, in a dissenting opinion replete with unanswerable logic, said the constitutional guaranty against deprivation of property without due process of law “ was intendеd to protect every valuable right which a man has. The term ‘property’ ” in the constitutional provision “embraces all valuable interests which a man may possess outside of himself; that is to say, outside of life and liberty.” It “еxtends to every species of vested right.” “ An exemption from a demand or an im*379■munity from prosecution in a suit is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. The two things аre correlative, and to say that the one is protected by constitutional guarantees and the other not, seems to me almost an absurdity. My property is as much imperiled by an action against me for money аs it is by an action against me for my land or my goods. Is not a right of defense to such an action of the greatest value to me ? If it is not property in the sense of the constitution, then we need another amendment to that instrumеnt; but it seems to me there can hardly be a doubt-that it is property.” The opinion is supported by an abundance of authority cited. It states the doctrine of this .court on the subject with strict accuracy. It remains to be seen whether the doctrine of the Illinois court is the same.

Now, notwithstanding numerous statements by the Illinois supreme court that the statute of limitations acts on the remedy, if it holds that a completed statutory period of limitation in favor of a person charged with a liability, is a vested property right, that, as indicated, is the same as holding that it extinguishes the right affected by it. In other words, while the test of whether ‍​‌‌​‌‌‌‌​​‌​​​​‌‌​​​​‌‌​‌‌​​‌​​‌‌‌‌‌​​​​​​‌​​‌​‌‍the statute of limitations of Illinois, when fully run upon a claim, bars the right to such claim in the courts of this state, is whether it extinguishes such right in Illinois, the test of whether such is its effect in such state is whether the right to the benefit of the statutory bar is there considered a constitutional privilege that cannot be taken from its possessor adversely.

In the light of the foregoing, we turn to Board of Education v. Blodgett, 155 Ill. 441, and there find the principle decided in Brown v. Parker, 28 Wis. 21, announced as the law of that state. The court said, in substance,- that when the statute of limitations has run against a demand, the demand is gone because the defense of the bar of the statute is a vested right which the legislature cannot take away, either *380by a repeal of the statute or by an affirmative act, and. that the rule applies whether the limitation affects real or personal property, or a claim on contract or sounding in tort; that the right to a defense, when fully vested, is as valuable as a right of action and is equally subject to constitutional protection. No expressiоn found in the books goes further than that, not even the dissenting opinion of Justice Bradley in Campbell v. Holt, 115 U. S. 620. In a still later case, Fish v. Farwell, 160 Ill. 236, the court said, “A right of defense against a money demand arising from the complete running of the statute of limitations, is property within the protection of the constitutional guaranty of due process of law.”

Now, to go further with the Illinois cases would serve no valuable purpose. It may be conceded that there are many expressions found in them to the effect that limitation acts operate on the remedy, as in Suppiger v. Gruaz, 137 Ill. 216, to which our attention was particularly invited. Such expressions, however, are not inconsistent at all with the undoubted rule of the Illinois court that when thе operation of the statute upon the remedy is complete the right ‍​‌‌​‌‌‌‌​​‌​​​​‌‌​​​​‌‌​‌‌​​‌​​‌‌‌‌‌​​​​​​‌​​‌​‌‍to the benefit of the bar thus created is property and protected as such by the constitutional guaranty like any other property, and that such protection goes with its possessor into any jurisdiction into which he may travel.

So it is as plain as English words can state it, that the bar of the statute of limitations of Illinois, upon a remedy in its courts, is a vested propеrty right which forever extinguishes, there, a cause of action upon which it operates, therefore such bar is likewise effectual here if seasonably pleaded and insisted upon. That was done in this case, and it warranted the judgment appealed from.

By the Court.— The judgment of the superior court is affirmed.

Dodge- J., dissents.