107 Ill. 291 | Ill. | 1883
delivered the opinion of the Court:
This record presents the question whether the suing out of a writ of error is the commencement of a suit, and if so, whether it is within the limitation of the bar of the 5057th section of the Revised Statutes of the United States. Other questions are also presented, but this is the main question.
It has been repeatedly held by this court that the suing out of a writ of error is the commencement of a suit. (Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 id. 20; Smith v. Robinson, 11 Ill. 119; Roberts v. Fahs et al. 32 id. 474; Burnap v. Wight, 14 id. 303.) And the doctrine that it is a suit was fully recognized in Schrœder v. Merchants and Mechanic’s Ins. Co. 104 Ill. 71. In the first four of these cases the question arose on motions to dismiss the writ of error because it was sued out by non-resident plaintiffs without filing a bond for costs, as required by the statute of such plaintiffs before bringing suits in the circuit or Supreme courts. It is true that those cases did not involve the bar of the Statute of Limitations, but they did whether a proceeding in this court by error was a new suit, and it was held to be the commencement of a new suit,—and such has been the settled law for nearly forty years; and it must be that if it is a suit for one purpose, it is for all purposes. But if it w7ere not, in the case of Burnap v. Wight, supra, it was held to be where the Statute of Limitations is interposed to defeat the writ of error. So we may regard the question as at rest.
It, then, being established that a proceeding on a writ of error is, for all purposes, a suit, it follows, as was held in Burnap v. Wight, supra, that the Statute of Limitations may be interposed as a bar. Our statute has limited the suit to five years; and the 5057th section of the Revised Statutes of the Unitéd States provides, that “no suit, either at law or in -equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee; and this provision shall not, in any ease, revive a right of action barred at the time when an assignee is appointed. ” Congress had the unquestioned power to adopt this provision governing the action of the States and their courts, because the power had been conferred on it by the Federal constitution. This is, then, a rule by which the State courts are governed, and to which the State statutes must yield. The case of International Bank of Chicago v. Jenkins, 104 Ill. 143, is in point, and governs this ease.
The Appellate Court ruled otherwise, and for this error its decree must be reversed and the cause remanded.
Decree reversed.
Subsequently, on an application for a rehearing, the following additional opinion was filed:
This case was -brought to this court by the International bank. The decree of the Appellate Court held that the limitation section of the Bankrupt act was not applicable, and did not control in this case. At the March term, 1883, of this court, a motion was entered to dismiss the writ of error, on the ground that the decree of the Appellate Court was not so far final as to authorize the bank to bring error to reverse the decree; but it was held that the writ was properly brought, and the motion was, at that term, overruled. When the writ of error went to the Appellate Court, it brought the entire record, and all the parties in the case, from that to this court. The -case could not be split up, and one portion be pending in this court and another pending in the Appellate or the circuit court. When the bank sued out the writ the clerk of the Appellate Court was required to return the entire record, and the service brought the defendant in error before this court, and the 'reversal of the decree of the Appellate Court leaves that court to proceed with and hear the ease,, and render the proper decree. There is nothing in the record from which it appears a reversal of the decree of that court in anywise affects the rights of Mrs. Eankin. The merits of her case were not discussed in this court, and are therefore not passed upon. The decree of the Appellate Court is reversed only because of the error in holding that the plea of the bar of the statute of the Bankrupt act was not good as a defence. The rights of other parties to the record are not passed upon here, and the Appellate Court will dispose of their rights as equity may require, and not affected by the reversal on the sufficiency of the plea.
