43 Kan. 619 | Kan. | 1890
The opinion of the court was delivered by
After the motion to quash the alternative writ issued in this case was sustained, at the July term for 1889, the plaintiff, with leave of the court, filed two amendments to the writ. To the writ as amended the defendants have filed another motion to quash.
We shall refer to the statute of limitations only, as we think that disposes of the case. The writ as demanded recites that the plaintiff completed the road-bed in accordance with the terms of his contract prior to the 30th day of June, 1872; that on or about June 30, 1872, he became the owner of and entitled to receive the bonds referred to; that on the 30th day of June, 1872, the Fort Scott & Allen County Railroad Com
The plaintiff attempts to avoid the five-years statute of limitations by alleging that he commenced two suits in the United States circuit court for the district of Kansas to recover the bonds. One suit was commenced in 1874, against the Fort Scott, Humboldt & Western Railroad Company, Bourbon county, and the commissioners of that county. The prayer of the bill was that the Fort Scott, Humboldt & Western Railroad Company be decreed to assign its claim for the bonds of Bourbon county to the plaintiff, and that the board of county commissioners of that county be decreed to issue them to him. A demurrer was sustained to the bill. An appeal was taken to the supreme court of the United States, and at the October term of the court for 1878, the ruling of the United States circuit court was affirmed. The United States supreme court, speaking through Mr. Justice Swayne, said:
“There is no privity between the county of Bourbon and the complainant. There has been no assignment, legal or equitable, to him by the railroad company of its claim against the county. If there had been an assignment, the circuit court could not have taken jurisdiction of the case, because the assigner, if there had been no assignment, could not have maintained a suit upon the thing assigned in that form. Rev. Stat., 109; Sere v. Pitot, 6 Cranch, 332.” (Smith v. Railroad Co., 99 U. S. 398.)
This opinion was filed in March, 1879.
On the 5th of December, 1879, the plaintiff recovered a judgment against the Fort Scott, Humboldt & Western Railroad Company in the circuit court of the United States for the district of Kansas, for $267,113.19 besides costs, on which judgment an execution was issued and returned unsatisfied,
This opinion was filed in May, 1888. After the opinion was filed, the bill of plaintiff, in the United States circuit court for the district of Kansas, was dismissed against Bourbon county and the commissioners of that county, for want of jurisdiction; but the circuit court entertained the bill as against the railroad company for the assignment of its right to the issue of the bonds of Bourbon county. On the 5th day of December, 1888, the United States circuit court rendered judgment that the right to have issued to the railroad company $125,000 of the county bonds of Bourbon county be assigned to the plaintiff, with the power to bring an action in his name or in the name of the railroad company for his benefit against Bourbon county, and the commissioners of that county, to obtain the issue and delivery of the bonds. The action in this court was brought December 31, 1888, within one year after the rendition of the judgment of the supreme court of the United States, of May, 1888. On ac
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
On the 6th of June, 1871, the plaintiff entered into a written contract with a railroad company of which the Fort Scott, Humboldt & Western Railroad Company is the successor, to grade a road-bed from the city of Port Scott, in Bourbon county, to Humboldt, in Allen county. In payment of the work to be performed under this contract by the plaintiff, the railroad company agreed to pay or deliver to plaintiff $125,-000 of the bonds of Bourbon county. Prior to June 30, 1872, the plaintiff had fully completed his contract, and was entitled to his payment therefor from the railroad company. The allegation in the amended writ, that plaintiff on or about June 30, 1872, became the owner of the bonds of Bourbon county, must be construed with the other allegations contained in the writ. The bonds were never delivered to the railroad company, nor to the plaintiff. The plaintiff had no contract with Bourbon county, nor with the commissioners of that county. His contract was with the railroad ¡ company only. After plaintiff had completed the road-bed, he was a creditor of the railroad company, but not a creditor of Bourbon county. After the railroad company had fully performed its contract with Bourbon county, it had the right to claim the bonds. This, and nothing more.
Prior to December 5,1888, the plaintiff had no assignment, legal or equitable, to him by the railroad company of its claim against the county. Even at that time there was no transfer or assignment of any bonds. The court merely decreed that the right to have issue to the railroad company
In Tennant v. Battey, 18 Kas. 324, it was decided that a plaintiff who had an attachment lien upon the property could not prosecute an action to set aside an assignment embracing the property attached, until he had obtained judgment against the debtor. There was no privity between the plaintiff and the county of Bourbon, and before the rendition of the judgment of December 5, 1879, the plaintiff had no right, legal or equitable, to commence or maintain any action against Bourbon county for the bonds or the issuance of the bonds. Prior to the 5th day of December, 1879, the five-years statute of limitations had run against the railroad company. At that time, any action by the railroad company, or its assignees, or any creditor of the railroad company against Bourbon county for the bonds, was barred.
“It is quite apparent,” says Judge Walker, for the court, in State Bank v. Magness, 11 Ark. 343, “that the intention of the framers of the act [similar, to §23 of the code] was to secure that class of suitors from loss, who, from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action yet undetermined, by giving them a reasonable time in which
We think that the provisions of §23 should be given a liberal construction, but where a plaintiff has no debt, or legal or equitable claim against the defendant, and has no interest whatever in the subject-matter of the action, he cannot be considered as having “an action undetermined” to renew or revive. He is not within the letter or the spirit of the statute. This action, commenced since the judgment of December 5, 1879, and the assignment of December 5, 1888, is not a continuation of the suit of 1874. In that suit, the plaintiff, on the face of his pleadings, had no legal or equitable title or claim to the bonds of Bourbon county. In this action, his claim to the bonds is based upon the judgment of the 5th of December, 1879, and the subsequent judgment of December 5, 1888. (Meath v. Commissioners, 109 U. S. 268; Tiffin v. Leabo, 52 Mo. 49; Sidener v. Galbraith, 63 Ind. 89.) Therefore, as this action is not a continuation of the suit commenced in the United States circuit court in 1874, the plea of the statute of limitations of five years is sufficient, and bars any recovery.
Counsel for plaintiff refers to Seaton v. Hixon, 35 Kas. 663, as authority, that even if his suit of 1874 in the United States circuit court was prematurely brought, his present action 3k saved by §23 of the code. In that case, while the action was prematurely brought, Hixon had a claim and a lien for materials furnished by him as sub-contractor upon the building owned by Seaton. He had an interest in the subject-matter of the action. His action was merely premature, because commenced within less than sixty days after the completion of the building, which, under the statute, is too soon. That case therefore differs materially from this. In this case the plaintiff had no lien upon the bonds in controversy, nor any legal or equitable claim against Bourbon county, prior to December 5, 1879.
Plaintiff further insists that, as the railroad company re
If all of the allegations in his petition are true, the plaintiff might have obtained a judgment in proper time against the railroad company, and then, within the statute of limitations, have instituted a creditor’s bill against Bourbon county. This remedy he did not pursue. Without having any action, or cause of action, or right of action against Bourbon county, he commenced a proceeding in 1874 against that county; but this proceeding, being prior to the judgment of December 5, 1879, was futile and useless as against the county. It amounted to nothing. The suit of 1874 does not protect him under § 23. That suit could not, under any possible pleading, or in any state or federal court, have resulted to the interest
The motion to quash must be sustained, and judgment will be rendered in favor of the defendants and against the plaintiff.