State Bank of West Pullman v. Pease

153 Wis. 9 | Wis. | 1913

The following opinion was filed January 28, 1913:

Marshall, J.

If the place of a contract is in one state and an action to enforce it is brought in another, does the statute of limitations of the former apply? Counsel for appellant hold the affirmative. If they are right the judgment is wrong. The trial court held that the law of' the forum governs.

Counsel make the mistake of supposing that the statute of limitations of the place of a contract falls within the doctrine that a contract is governed by the lex loci contractus. Such is not the case. It bears on the remedy and, in many jurisdictions, including our own, extinguishes the right by rendering it nonenforceable. In a sense, it bears on the right, because a right without a remedy ceases to be a right at all, except in a moral sense. A distinction is made, however, between bearing upon the right and bearing upon the remedy, in this; in case, at the place of the contract, the statute bears on the remedy without operating, fatally, upon the right, such right may be enforced in a state where its own statute has not run; but, in case, at the former place, the right has been extinguished by the law there, then it cannot be enforced in another state even though its own statutory period has not expired. But, in any case, if the contract has not fully run at the place of the contract, but has in the jurisdiction where enforcement is sought, the latter governs. That is by the universal rule, it will be found, when the ground of apparent differences in judicial holdings is appreciated. “This rule is in conformity with the universal rule that, as the statute operates merely upon the remedy, the law of the forum, and not the law of the situs of the contract, controls.” Wood, Limitations (2d ed.) § 8; Hite v. Keene, 149 Wis. 207, 134 N. W. 383, 135 N. W. 354.

In Arp v. Allis-Chalmers Co. 130 Wis. 454, 110 N. W. 386, the question was not, as counsel seem to think, whether the limitation act should have the effect, under the circumstances here, accorded to it, but whether it was, strictly speaking, a statute of limitation. Having that in the affirmative, the consequences, in general, of such statutes were held to apply,- — -apply though the cause of action arose under the laws of another state, the court declaring, as a principle of general application: “It is the long settled doctrine of this court that, when a statute of limitations has completely operated, it extinguishes the right of action by taking away the remedy. ... In the absence of any saving clause our statutes of limitation operate against nonresident plaintiffs who bring actions in the courts of this state as well as against residents.” The court further said, in effect, a right referable to a foreign jurisdiction, may have vitality and be enforceable there and yet have been extinguished as regards the courts of this state, as it is in all cases where, hy lapse of time, if the contract were of domestic character, it would he so regarded.

Did the trial court rule right in sustaining the action as to Mr. Pease but not as to Mrs. Pease f That was done by reason of our statute, sec. 4248, providing that payment by one joint debtor shall not affect the right of any other to the benefit of the statute of limitations, and the presumption that the law of-Illinois — the place of the contract — is the same as here, there being no proof, as the court thought, to the contrary. Counsel, in the main, answer that hy claiming that the entire statutes of Illinois were in evidence, showing they contained no such saving clause as our sec. 4248 and that the court should have been governed accordingly, — should not have ignored the presence of the book before it merely because counsel did not definitely call attention thereto or perhaps introduce oral proof on the subject.

Tbe difficulty with counsel’s position is that the whole statutes of Illinois were not in evidence except for the purpose of identification; the court being distinctly told that the book was so offered and that only a particular section was required to be considered. That was not changed by anything else which occurred upon the trial. The offer, coupled with a suggestion that no part of the book need be considered except sec. 83, as was the fact, warranted the court in taking that course. Had the volume been offered for the purpose of showing that it did not contain any such provision as our sec. 4248, the case would be far different. On the whole, it seems that the court was rather invited not to look into the limitation statutes of Illinois as a whole, and was warranted, as stated, in applying the statutes of this state, as was done.

Other matters discussed, including a suggestion that our statute was not properly pleaded, and that the law of Illinois fixing the liability of married women had a bearing on the question, have been considered without discovering any reason why the judgment appealed from should be disturbed, or other matters should be treated at length.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on April 8, 1913.