Amy v. City of Watertown

• Decision Date: 08 April 1889
• Docket Number: No. 197,197
• Citation: 130 U.S. 320,9 S.Ct. 537,32 L.Ed. 953
• Parties: AMY et al. v. CITY OF WATERTOWN. 1
• Court: U.S. Supreme Court

130 U.S. 320

9 S.Ct. 537

32 L.Ed. 953

AMY et al. v. CITY OF WATERTOWN.

No. 197.¹

April 8, 1889.

George P. Miller, for plaintiffs in error.

Daniel Hall and George W Bird, for defendant in error.

BRADLEY, J.

This is an action for a money demand, brought by the plaintiffs in error against the defendant, the city of Watertown. A summons was sued out against the city on the 19th of June, 1883, and served by the marshal on the 26th of the same month by delivering a copy to the city clerk, the city attorney, and to the last-elected chairman of the board of street commissioners. Appearance to the action was entered by the attorneys of the city, and a copy of the complaint was demanded. The complaint was duly filed, and set forth the issue by the city of three bonds for $1,000 each, bearing date, respectively, the 1st day of June, 1856, and payable on the 1st day of January, 1877, with interest thereon at the rate of 8 per cent. per annum, payable semi-annually, and with coupons annexed, to represent the successive installments of interest. The plaintiff prayed judgment for the amount of said bonds and of the last 10 coupons on each. The defendant, in its answer, set up as a defense that the several causes of action did not, nor did either of them, accrue within six years next before the commencement of the action; that being the time within which actions upon bonds and coupons must be commenced in the state of Wisconsin. To this answer the plaintiffs replied (by way of an amendment to their complaint) as follows: 'Said plaintiffs allege, on information and belief, that the said defendant, the city of Watertown, and the officers, agents, and citizens and residents of said city, did, subsequent to the 1st day of March, A. D. 1873, conspire together and with each other, and ever since have conspired together and with each other, for the purpose, and with the preconceived intent and design, to defraud these plaintiffs and all other owners and holders of the bonds and coupons to such bonds issued by said city, and to prevent these plaintiffs and other holders and owners of said bonds and coupons from obtaining the service of process on said city. Said plaintiffs further allege, on information and belief, that each year since the 1st day of March, 1873, a mayor of said city was elected, as required by law, but said mayor each year, with the intent and design as aforesaid, qualified as hereinafter mentioned, and immediately thereafter placed his resignation in the hands of the city clerk of said city, to be filed by him in case of emergency, and to take effect accordingly. Said plaintiffs further allege, on information and belief, that each year since the 1st day of March, 1873, after the mayor and members of the common council had been elected, they and each of them failed to qualify until they had assembled together in a secret place with locked doors, unknown to the people at large and to these plaintiffs, and with persons on watch to inform them of the approach of any person or persons, and then and there, if unmolested, the mayor and the members of the common council, qualified as required by law, transacted for said defendant city certain necessary business, and thereafter immediately filed with the city clerk of said city their respective resignations, to take effect immediately, and which resignations went immediately into effect. Said plaintiffs further allege that since the 1st day of March, 1873, they have employed attorneys and agents for the purpose of ascertaining who was the mayor or acting mayor, or chairman of the common council, or chairman of the board of street commissioners, and for the purpose of having process served on said city; but owing to said conspiracy, as these plaintiffs are informed and believe, since the 1st day of March, 1873, there has been no mayor of said city except each year for a few hours at such secret and concealed meetings, and the common council of said city, with the said fraudulent intent and design, has failed each year to elect a chairman of said common council, and since said last-mentioned date there has been no person who was acting mayor, and no chairman of the board of street commissioners. Said plaintiffs further allege that, notwithstanding they have used due diligence, and have hired attorneys and agents for the purpose of having process served on said city, they have been unable to this date to serve or have served the summons in this action on the mayor of said city, or on that person who by law should exercise the functions of mayor of said city.' The defendants thereupon filed an amended answer, again setting up the statute of limitations, and averring that the plaintiffs did not commence, or attempt to commence, said action, or use any diligence whatever to commence the same, before the 19th of June, 1883. To this answer the plaintiffs demurred, and the court below overruled the demurrer, and allowed the plaintiffs 20 days to file such further pleadings as they might deem proper. 22 Fed. Rep. 418. As the plaintiffs failed to plead further, judgment was entered for the defendant. To this judgment the present writ of error is brought.

It will be observed that the plaintiffs do not pretend that they commenced the action within the legal period of six years after the several causes of action accrued; and their excuse for not doing so is that it would have been of no use, on account of the alleged conspiracy of the officials and residents of Watertown to prevent, a service of process, by the resignation of the mayor, and by the secret meeting of the common council before qualifying and organizing, and by their immediately resigning their offices after the transaction of some necessary business. The question is whether such proceedings on the part of the city officials furnish an excuse for not commencing the action within the time limited by law? The statute itself specifies several exceptions to its operation,—as (1) when the defendant is out of the state; (2) when he is an alien subject, or a citizen of a country at war with the United States; (3) when the person entitled to bring the action is insane, or under age, or imprisoned on a criminal charge; (4) when the commencement of an action has been stayed by injunction or statutory prohibition; (5) where the action is for relief on the ground of fraud, the statute does not begin to run until the discovery by the party aggrieved of the facts constituting the fraud. The question, therefore, is whether the courts can create another exception, not made by the statute, where the party designedly eludes the service of process? Have the courts the power thus to add to the exceptions created by the statute? That is the precise question in this case. It is said by Mr. Justice STRONG, in Braun v. Sauerwein, 10 Wall. 218, 223: 'It seems, therefore, to be established that the running of a statute of limitation may be suspended by causes...