233 F. 68 | 6th Cir. | 1916
The question presented upon this writ of error is whether Merko is entitled to the benefit of a three months’ extension provision of a statute of limitations of Kentucky. Merko is an alien, a citizen of Austria, and was injured in Clark county, Ky., October 10, 1912, while in the employ of the Sturm & Dillard Company, a West Virginia corporation. Merko commenced an action against that company in the United States District Court for the
Reliance for this dismissal is placed on certain statutes of Kentucky. Section 2516 provides that an action like this “shall be commenced within one year next after the cause of action accrued, and not thereafter” (Carroll, Ed. 1909), but section 2545 (Id.) provides:
“Where an action has been or shall he commenced in due time and in good i'aith, in any court of this commonwealth, and the defendants, or either of them, have or shall make defense, and it shall he adjudged that such court had or has no jurisdiction of the action, the plaintiff or his representative may, within three months from the time of such judgment, commence a new action in ihe proper court, and the time between the commencement of the first and last action shall not be counted in applying the limitation.”
It is true, as the dates before pointed out show, that more than one 3~ear elapsed between the date of plaintiff’s injuries, and the commencement of his action in the Clark Circuit Court; though it will be observed that less than three months passed between the first dismissal in the court below and the commencement of plaintiff’s action in the Clark Circuit Court. The proposition of the defendant company is that the federal District Court, in which the action was originall}- commenced, is not a “court of this commonwealth” within the meaning of section 2545, and consequently that Merko’s action does not fall within the three months” period there provided. This question has not been determined in the state of Kentucky, except in the present case; and we have not the benefit of an opinion of the learned trial judge.
The question is one of purely statutory intent. The District Court mentioned was of course created and its jurisdiction defined by acts of Congress. In the sense then of its origin and jurisdiction, the District Court is not a court of the commonwealth of Kentucky; but we cannot think that this is decisive of the present question. The pend-ency of a suit between the same parties and involving the same subject-matter, in both a state and federal court existing within a given state, does not warrant abatement of the suit in either tribunal (Hunt v. N. Y. Cotton Exchange, 205 U. S. 322, 339, 27 Sup. Ct. 529, 51 L. Ed. 821); but this rule has no present pertinency, for the jurisdiction of each is foreign to that of the other. Here, in accordance with sec
We therefore think the present case is ruled by the decision in Ex parte Schollenberger, 96 U. S. 369, 376 (24 L. Ed. 853). A statute of Pennsylvania was there involved which required insurance companies organized under states foreign to Pennsylvania to do certain things as a .condition precedent to their right to conduct business in the state, among which was to maintain an agency there to receive service of process in any suit commenced “in any court of this commonwealth”; and the question whether a federal Circuit Court was
“It was insisted m argument that the statute confines the right of suit to the courts of the state; hut we cannot so construe it. There is nothing to manifest such an intention. * * * While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the Legislature intended to provide for.”
We are unable effectively to distinguish the instant case from the rule of that decision; for there is no claim that Merko’s first suit was not brought in the court below in “good faith” within the meaning of the statute. It results that the decision below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
It is scarcely necessary to say that tlie same statutory policy and rule of decision still prevail, and regardless, too, of the fact that the plaintiff is an alien. Sections 24 and 51, Fed. Jud. Code (Act March 3, 1911, c. 231, 36 Stat. 1091, 1101 [Comp. St. 1913, §§ 991, 1033]); Lehigh Valley Coal Co. v. Yensavage, 218 Fed. 547, 549, 134 C. C. A. 275 (C. C. A. 2d Cir.); Eldorado Coal & Mining Co. v. Mariotti, 215 Fed. 51, 54, 131 C. C. A. 359, and citations (C. C. A. 7th Cir.); Fribourg v. Pullman Co. (C. C.) 176 Fed. 981, 983-4, and citations, and see Smith v. Farbenfabriken of Elberfeld Co., 203 Fed. 476, 482, 121 C C. A. 598 (C. C. A. 6th Cir.)
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