Chemung Canal Bank v. Lowery

• Decision Date: 01 October 1876
• Citation: 93 U.S. 72,23 L.Ed. 806
• Parties: CHEMUNG CANAL BANK v. LOWERY
• Court: U.S. Supreme Court

93 U.S. 72

23 L.Ed. 806

CHEMUNG CANAL BANK v. LOWERY.

October Term, 1876

ERROR to the Circuit Court of the United States for the Western District of Wisconsin.

It appears by the complaint in this cause, that the plaintiff recovered a judgment against the defendants in New York, on the fourteenth day of June, 1862, for upwards of $15,000,—the plaintiff being a corporation of New York, and the defendants all having appeared in the suit. The present suit was brought on that judgment; but only one of the defendants was served with process, the others residing out of the jurisdiction of the court. The complaint states that the defendant, who was served with process, was when served, and still is, a citizen and resident of Wisconsin, but that he did not come into the State, and was not a resident thereof, until the year 1864. This action was commenced on the 24th of January, 1873,—a little more than ten years after the recovery of the judgment in New York, and less than ten years after the defendant, who was served, came into the State. The plaintiff demands judgment against the defendant now before the court.

The defendant filed the following demurrer to the complaint, to wit:——

'The defendant, Goodwin Lowery, demurs to the plaintiff's complaint in this action, for that it appears upon the face of the same that the plaintiff's claim or demand is barred by the Statute of Limitations, in that it appears that the supposed cause or causes of action did not, nor did either of them, accrue to the said plaintiff at any time within six years, nor at any time within ten years next before the commencement of this action, and for that the said complaint does not state facts sufficient to constitute a cause of action.'

Upon this demurrer the court gave judgment for the defendant. To reverse this judgment, the present writ of error was brought.

Argued by Mr. William P. Lynde for the plaintiff in error.

Under the statute of Wisconsin, objection that the action was not commenced within the term limited can only be taken by answer. Rev. Stat. Wis., c. 138, sect. 1. Where the common-law pleadings prevail, a party seeking to avail himself of the Statute of Limitations must plead it specially. Bricket v. Davis, 21 Pick. 404; Gould v. Johnson, 2 Ld. Raym. 838; Puckel v. Moore, 3 Vent. 191; Jackson v. Varick, 2 Wend. 294; Robins v. Harvey, 5 Conn. 335.

As the plaintiff might have been within some of the various exceptions mentioned by statute, the demurrer should have been overruled. Angell on Lim., c. 26, sect. 1; State v. Finch, Cro. Car. 381; Hawkins v. Billhead, id. 404; Hyde v. Van Valkenburgh, 1 Daly (N. Y.), 416.

The statute on which the defence is founded denies to citizens of other States the rights and immunities which it accords to her own, and is, therefore, in violation of the Constitution of the United States. Corfield v. Coryell, 4 Wash. C. C. 381; Ward v. Maryland, 12 Wall. 430; Slaughter-house Cases, 16 id. 117; Cooley on Const. Lim. 16; id. 397.

Mr. S. U. Pinney, contra.

The distinction between actions at law and suits in equity has been abolished in Wisconsin. Rev. Stat. Wis., c. 122, sect. 8. Therefore, where the defence of the Statute of Limitations is apparent on the fact of the complaint, the objection that the demand is barred by lapse of time may be taken by demurrer. Howell v. Howell, 15 Wis. 55.

Such being the practice in the State courts, those of the United States sitting in that State are bound to adopt it. 17 Stat. 197.

The plaintiff in error is not a citizen within the meaning of that word, but a corporation of another State. It therefore has no status or standing in the courts of Wisconsin to enable it to invoke the protection of the Constitution of the United States. Warren Manuf. Co. v. AEtna Insurance Co., 2 Paine, C. C. 516; Paul v. Virginia, 8 Wall. 168; Bank of Augusta v. Earl, 13 Pet. 586.

It is submitted that the statute of which plaintiff in error complains does not abridge or deny the privileges or immunities of citizens of other States within the meaning of the Constitution, but is a mere regulation of the remedies which the State, by virtue of its sovereignty and according to its own notions of policy, may constitutionally adopt.

MR. JUSTICE BRADLEY delivered the opinion of the court.

The errors assigned in this case are substantially two: First, that the Statute of Limitations cannot be set up by demurrer and, secondly, that the statute on which the defence is founded is unconstitutional in this, that it unjustly discriminates in favor of the citizens of Wisconsin against the citizens of other States; for, if the plaintiff had been a citizen of Wisconsin, instead of a citizen of New York, the statute would not have applied.

As to the first assignment, it is undoubtedly true, that the Statute of Limitations cannot, by the English practice, be set up by demurrer in actions at law, though it may be in certain cases in suits in equity. And this rule obtains wherever the English practice prevails. But where the forms of proceeding have been so much altered as they have been in Wisconsin, further inquiry must be made. In the first place, by the Revised Statutes of that State, passed in 1858, in the title 'Of proceedings in civil actions,' it is declared that 'the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.' Rev. Stat. 714. Secondly, that 'all the forms of pleading heretofore existing are abolished.' The act proceeds to declare that the first pleading on the part of the plaintiff is the complaint, which shall contain, amongst other things, 'a plain and concise statement of the facts constituting a cause of action without unnecessary repetition.' Rev. Stat. 721. It provides that the defendant may demur for certain causes, but that other defences must be taken by answer. Id. Amongst the grounds of demurrer, one is, 'that the complaint does not state facts sufficient to constitute a cause of action.' In another title,—'Of the limitation of actions,'—it is provided that 'the objection that the action was not commenced within the time limited can only be taken by answer.' Rev. Stat. 819. But the Supreme Court of Wisconsin has decided, that, when on the face of the complaint itself it appears that the statutory time has run before the commencement of the action, the defence may be taken by demurrer, which, for that purpose, is a sufficient answer. Howell v. Howell, 15 Wis. 55. This case has been recognized in later cases (see Tarbox v. Supervisors 34 Wis....