100 F. 901 | 8th Cir. | 1900
after stating the ease as above, delivered the opinion of the court.
The statute of limitations of the state of Kansas, so far as it is applicable to the issues in this case, is as follows:
“S«c. t2. Civil actions other than i'or llie recovery of real property can only he brought within the following periods after the cause of action shall have accrued, and not afterwards. S: * * Third. Within two years * * * an action for relief on the ground of fraud. The cause of action in such case shall not ho deemed to have accrued until the discovery of the fraud.” Gen. St. fian. 1897, e. 95.
Under this statute the cause of action is not deemed to have accrued until the discovery of the fraud, but it is not sufficient to allege or to show merely that the defendant had no notice of the fraud, in order to defeat the jilea of the statute of limitations. It must he also alleged and proved that there has been such concealment as would prevent a person exercising due diligence from discovering the facts. Murray v. Railway Co., 35 C. C. A. 62, 92 Fed. 868. In the case cited we quoted from the case of Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807, where the rule on this subject is succinctly and clearly stated. See, also, Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671, 38 L. Ed. 548; Credit Co. of London v. Arkansas Cent. R. Co., 5 McCrary, 31, 15 Fed. 46. The transaction between the plaintiff and the defendants took place in 1886. There is nothing shown in the petition why the plaintiff could not have discovered the true value of the mortgaged property, and the financial condition of the mortgagors, within two years thereafter, and certainly such discovery could have been made more than two years before the institution of this suit. There is no allegation or proof to show that he made any effort to ascertain these facts. Plaintiff merely relied upon the statements made to him by the agents of the defendant trust company. The learned counsel for the plaintiff in error ingeniously claims that, as a false affirmation made by the party wiiii intent to defraud the plaintiff is not actionable unless the plaintiff received or suffered damages thereby, the statute of limitations did not begin to run until after the foreclosure proceedings by the plaintiff had been concluded, and a sale of the premises made, as until then he could not tell what his damages, if any, would be by reason of the deceit and fraud of the defendants. While it is true that no action for deceit will lie unless the party defrauded has been damaged thereby, yet it does not follow that the amount of damages must first be ascertained by judicial proceedings, before the statute of limitations is set in motion. We are, in effect, asked by the learned counsel for the plaintiff in error to add to the statute so as to make it read:
“The cause of action for relief on the ground of fraud shall not be deemed to have accrued until the discovery of the fraud and the ascertainment by the plaintiff of the loss sustained by him by reason of the transaction.”
Courts are compelled to indulge in a good deal of judicial legislation, but it is never done to the extent and in the manner here sug
As to the second count, the petition shows on its face that it had been fully adjudicated by the district court of Dickinson county, Kan., between the same parties. When that court determined that the defendants were entitled to recover the sum of $4,881.90, as a first lien upon the property, and that the plaintiff could not avail himself of the written guaranty as against that claim of the defendants, it in effect decided that the plaintiff could not recover from the defendants on that guaranty. Whether the state court erred in its judgment, it is not our province to determine. The supreme court of Kansas was the only court which had the power to review that judgment, and, plaintiff having failed to secure a reversal from the court which had the exclusive appellate jurisdiction over the state court, its judgment is final and conclusive. Nesbit v. Independent Dist., 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Railroad Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72, 36 L. Ed. 972; Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611, 38 L. Ed. 463.
When the defendants in this suit filed their cross complaint in the foreclosure suit in the state court, and asked for repayment of the sums of money paid out by them for insurance and taxes on the lands covered by the mortgages purchased by the plaintiff, and plaintiff pleaded the guaranty upon which the second count of his petition in this action is based, the validity and effect of that guaranty were properly before the court; and as the plaintiff and defendants were parties to that action, and the state court had full jurisdiction over the matter, its judgment is conclusive, and res adjudicata. There was no error in the action of the court in excluding the evidence offered by the plaintiff in error on the second count, as that count showed on its face that the matter had been adjudicated between the parties by a court of competent jurisdiction. The judgment of the circuit court is affirmed.
