American Railway Express Co. v. Reeves

• Decision Date: 21 March 1927
• Docket Number: 287
• Citation: 292 S.W. 109,173 Ark. 273
• Parties: AMERICAN RAILWAY EXPRESS CO. v. REEVES
• Court: Arkansas Supreme Court

292 S.W. 109

173 Ark. 273

AMERICAN RAILWAY EXPRESS CO. v. REEVES

No. 287

Supreme Court of Arkansas

March 21, 1927

Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck Judge; reversed.

Judgment reversed and cause dismissed.

E L. Westbrooke, Jr., and E. L Westbrooke, for appellant.

T. A. Turner and Denver L. Dudley, for appellee.

OPINION

WOOD, J.

On the 2d, 13th and 23d of February, 1920, J. I. Kratzmeyer delivered to the American Railway Express Company, hereafter called Express Company, three separate lots of furs for shipment from points in Arkansas to St. Louis, Missouri. On January 15, 1921, an action was instituted in the circuit court styled "J. R. Reeves, trustee of the estate of J. I. Kratzmeyer, bankrupt, plaintiff, against the Express Company, defendant." The complaint alleged that Kratzmeyer, on May 8, 1920, had filed a voluntary petition in bankruptcy, and that J. R. Reeves had been appointed trustee by the creditors of Kratzmeyer. It was alleged that there was a loss in the shipment caused by the defendant in the total sum of $ 632.25, for which the plaintiff prayed judgment. An answer was filed on September 7, 1921, denying the material allegations of the complaint. On September 6, 1921, the attorney for the plaintiff filed a motion in which he suggested that J. R. Reeves had departed this life and that J. D. Reeves had been appointed trustee to succeed him, and moved that the cause be revived in the name of J. D. Reeves, trustee. On September 5, 1923, the Express Company filed a motion to dismiss the suit, alleging that the real party in interest had not sued as plaintiff. Attached to the motion was a certified copy of the record of the Federal court of the Eastern District of Arkansas, showing that no trustee in bankruptcy had been appointed. The court heard the motion on the same day, September 5, 1923, and sustained the motion, and dismissed the cause as to J. D. Reeves, trustee. The court noted in its order that "the complaint was amended by making J. I. Kratzmeyer a plaintiff, and the cause continued for service."

On the 12th of February 1925, a summons was issued out of the Craighead Circuit Court commanding the sheriff to summon the express company to appear at the next September term of the First Division of the Craighead Circuit Court, Jonesboro District, to answer the complaint of J. D. Reeves, trustee of the estate of J. I. Kratzmeyer, bankrupt, and J. I. Kratzmeyer. The Express Company was duly served with summons on February 13, 1925. On March 24, 1925, the Express Company appeared and moved the court to require the plaintiffs to make their complaint more specific. On the 5th of September, 1925, an answer was filed, denying the material allegations of the complaint and setting up in defense the statute of limitations. On September 8, 1925, the Express Company filed a motion setting up the various steps that had been taken in the cause, and moved the court to declare that the action was instituted on February 12, 1925, and that same was barred by the statute of limitations, and therefore asked the court to enter a judgment in its favor. The plaintiff thereupon moved the court to enter a judgment in its favor, which request the court granted, and entered a judgment in plaintiff's favor, from which is this appeal.

The only question presented by this appeal is whether or not the plaintiff is barred from maintaining the action by the statute of limitations. The statute of limitations applicable to appellees' alleged cause of action which accrued on the 2d, 13th and 23d of February, 1920, § 206 (a), (F. Statutes Ann. Supplement 1920, Act, approved February 28, 1920. The appellant was being operated under Federal control during the time the alleged loss occurred. The Government control terminated on March 1, 1920. The statute of limitations, in part, provides as follows: "Such actions, suits or proceedings may, within the periods of limitation now prescribed by State or Federal statutes, but not later than two years from the date of the passage of this act, be brought in any court which, but for Federal control, would have had jurisdiction of the cause of action had it arisen against such carrier." Act of Congress Feb. 28, 1920, § 206 (a), Fed. Statutes Ann. Supplement 1920, page 77).

The contract of carriage under which the shipments were made provides, in part, that "suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to...