McCormick v. Eliot

43 F. 469 | U.S. Circuit Court for the District of Massachusetts | 1890

Gray, Justice,

(after stating the facts as above.) Actions in the courts of the United States are doubtless governed by the statute of limitations of the state in which the court is held, as construed by the highest court of the state. Bank v. Eldred, 130 U. S. 693, 9 Sup. Ct. Rep. 690; Moores v. Bank, 104 U. S. 625. By section 1 of the Massachusetts statute of limitations of personal actions, (Pub. St. c. 197,) actions of contract founded upon contracts or liabilities not under seal, express or implied, except actions upon judgments of courts of record, must be commenced within six years next after the cause of action accrues. By section 13 of the same statute—

“If, in an action duly commenced within the time limited and allowed in this or the preceding chapter, the writ fails of a sufficient service or return by an unavoidable accident, or by a default or neglect of the officer to whom it is committed, or if the writ is abated or the action otherwise avoided or defeated by the death of a party thereto, or for any matter of form, or if after a verdict for the plaintiff the judgment is arrested, or if a judgment for the plaintiff is reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit, or after the reversal of the judgment; and if the cause of action by law survives, the executor or administrator of the plaintiff may commence such new action within said year.”

By the law of Massachusetts, as declared by the supreme judicial court, service on the defendant is not necessary to the commencement of an action, but an action is duly commenced by suing out a writ and putting it in the hands of an officer, with intent that it shall be forthwith served; and, according to the settled construction of the saving clause in the statute of limitations, above quoted, if an action, duly commenced within the period of limitation, afterwards fails for want of due service by reason of a mistake as to the residence of the defendant, (Bullock v. Dean, 12 Metc., Mass., 15;) or by non-entry of the writ by a mistake of the clerk, (Allen v. Sawtelle, 7 Gray, 165;) or if a judgment recovered therein is judicially declared erroneous, and as such void and held for naught, whether by a technical reversal or otherwise, — the plaintiff may bring a new action within one year after the failure of the action or the setting aside of the judgment, (Coffin v. Cottle, 16 Pick. 383,) even if the first action was dismissed for want of jurisdiction of the court in which it was brought, (Foods v. Houghton, 1 Gray, 580.) And it has beeri so held

by our predecessors, Mr. Justice Clifford and Judge Lowell, in this court. Caldwell v. Harding, 1 Low. 326. In the case at bar, the first action was “duly commenced” by suing out the writ, and putting it into the hands of an officer for service. The service was sufficient to make the judgment, until and unless reversed by writ of error, conclusive against the defendant, according to a uniform series of decisioiis of the highest court of the state, the last of which was rendered in 1885, in an action between these parties on this very judgment. McCormick v. Make, 138 Mass. 379. And this judgment was reversed by that court on writ of error in Eliot v. McCormick, 144 Mass. 10, 10 N. E. Rep. 705, in which it was for the first time intimated (what has been since adjudged in Needham v. Thayer, 147 Mass. 536, 18 N. E. Rep. 429) that, under the fourteenth amendment of the constitution of the United States, and the decisions of the supreme court in Pennoyer v. Neff, 95 U. S. 714, and Freeman v. Alder&on, 119 U. S. 185, 7 Sup. Ct. Rep. 165, a judgment rendered against an absent defendant on such a service was wholly void, except as to the property attached. This case is therefore within both the letter and spirit of section 13, c. 197, Pub. St. Mass.

It is equally clear that no presumption of payment from the lapse of 20 years can arise in this case, in which the only evidence bearing upon this question is the testimony of the plaintiff’s clerk that the claim was never paid, and the records showing uninterrupted attempts by the plaintiff to enforce it by judicial process. The case falls within the opinion of the court in Allen v. Sawtelle, above cited:

“It is certain that the plaintiff did not mean to permit his debt to remain for such length of time as would bar him from its recovery without an attempt to enforce it. He used the diligence required by the law when he instituted his first suit against the defendant. That was defoated through no negligence or inattention of his own, and therefore there was no forbearance or delay from which a presumption could arise that the debt had already been in some way paid or discharged. Having been defeated in his first suit by a matter not affecting the merits of his claim, he has a right, since he seasonably proceeded with the second, to prosecute it to a regular conclusion. ” 7 Gray, 166.

The defendant further relies on the provision of the statute oí Massachusetts of 1880, c. 98, re-enacted in Pub. St. c. 197, § 11, that “no action shall be brought by any person whose cause of action has been barred by the laws of any state, territory, or country while he resided therein.” But this statute, containing no words manifesting an intent of the legislature to give it a retrospective operation, must, like other statutes of limitation, be construed as prospective only, and therefore inapplicable to this case, in which the only residence of the defendant in Illinois was before its passage. Murray v. Gibson, 15 How. 421; Sohn v. Waterson, 17 Wall. 596; King v. Tirrell, 2 Gray, 331; Dickson v. Railroad Co., 77 111. 331.

This being a claim by a principal against his agent, for money which the latter was bound to account for and pay over, clearly bears interest from the time that the cause of action accrued. Dodge v. Perkins, 9 Pick. 368; Foote v. Blanchard, 6 Allen, 221. Judgment on the verdict.