82 F. 412 | U.S. Circuit Court for the District of Western Arkansas | 1897
On the 13th day of May, 1880, George M. Wrightman recovered judgment in the district court of the United States for the Western district of Arkansas, then having circuit court powers, on warrants commonly called “County Scrip,” of Benton county, Ark., for the sum of $G,280, for his debt and damage, with interest thereon at the rate of 6 per cent, per annum from the date of said judgment until paid, together with all his costs in and about said cause laid out and expended. On the 6th of August, 1881, $1,000 was paid on the judgment, and on the 7th day of July, 1882, the second payment of the sum of $843.46 was made, and on the 14th of April, 1883, a third payment of $1,176 was made, and on the 18th of March, 1885, a fourth payment of $705.47 was made. After this the judgment was assigned to W. A. Grever and Cos Altenberg, whom the
‘■Section 1. That no scire facias to revive a judgineni, shall he issued but within ien years from the date of the rendition of the judgment, or if the judgment shall have been aforetime revived, (hen within ten years from the order pf revivor.
“Sec. 2. This act shall take effect and be in force from and after one year from the date of its passage.”
More than 17 years had elapsed from the rendition of this judgment to the suing out of the scire facias, and 12 years had elapsed from the last payment on the judgment to the suing out of the scire facias.
Two questions arise: First. Whether or not the act approved April 8, 1891, applied to existing judgments, or whether it operated prospectively, and only was intended to apply to judgments thereafter rendered. A careful examination of the authorities leads the court to conclude that it was the purpose of the legislature that this act should apply to judgments then in existence, as well as those which should subsequently be rendered.
The second question is much more difficult. l!y the terms of the second section of the act, supra, it is provided that the act shall take effect and he in force from and after one year from the dale of its passage. It is insisted that, if the act approved April 8,1891, applied to existing judgments, it did not go into effect until one year from the date of its approval, and hence that it took away all remedy from the plaintiff by which he could enforce his judgment; a.nd this position is not without authority. In Price v. Hopkin, 13 Mich. 318, Judge Cooley, delivering the opinion of the court, distinctly holds that, while the general power of the legislature to pass statutes of limitations is not doubted, these statutes must always allow a reasonable time after the statute goes into force within which suits shall be brought, and that a statute which denies a reasonable time within which to bring a suit is, in effect, a statute legislating (he property of one person to he the property of another; and that such a statute is a palpable violation of tlie constitutional provision that no person shall he deprived of property without due process of law. He then proceeds to argue with much vigor that a statute can have no force or effect for any purpose before, by the terms of the act itself, it goes into effect, — citing Charless v. Lamberson, 1 Clark (Iowa) 442; Cargill v. Power, 1 Mich. 369; Rice v. Ruddiman, 10 Mich. 125. lie refers to the case of Smith v. Morrison, 22 Pick. 430, and declines to follow it. In concluding the argument he says:
*414 “If the period between the passage and the taking effect of the statute can be regarded as time allowed by the statute for bringing suit, then, in any case where by. a prospective statute a time is limited for that purpose, the time should begin to run at the time when the statute is passed, and not when it takes effect. But the court hold that the intervening lime is not to be counted as a part oil the time limit,” — citing Piatt v. Vattier, 1 McLean, 157, Fed. Cas. No. 11,117.
On the contrary, other courts have held that the object and purpose of the legislature in fixing a time when the act shall go into effect could not be for any other purpose than to operate as notice to persons haying judgments to institute their suits before the act went into effect, and, if they failed to do so, that they would be barred. In support of that contention the following cases, which seem to me to be strongly in point, are cited: Duncan v. Menard (Minn.) 21 N. W. 714; Eaton v. Supervisors, 40 Wis. 673; Stine v. Bennett, 13 Minn. 153 (Gil. 138); Burwell v. Tullis, 12 Minn. 572 (Gil. 486); Smith v. Morrison, 22 Pick. 430; Hedger v. Rennaker, 3 Metc. (Ky.) 255.
After the most careful consideration, I am unable to assign any reason why the legislature provided that the act of April 8, 1891, should not take effect and be in force until one year from the date of its passage, except upon the theory that persons who then had judgments should sue out scire facias to revive them on or before one year from the date of its passage. If it does not mean that, then the second section of that act seems to me to be absolutely nugatory,-.-to mean nothing; and it is a well-known canon of construction that every provision of a statute shall be construed so as to permit the whole to stand. It seems to me that this second section clearly indicates what the legislature intended, namely, that this act should apply, not only to future judgments, but to past judgments; and that all judgments would be barred in ten years from the date of their rendition unless scire facias to revive them was issued on or before one year from the date of its passage. I conclude, therefore, notwithstanding the very able opinion of Judge Cooley in 13 Mich., that the weight of authority is against him, and that the judgment in question is barred.
