Calhoun v. Kellogg

• Decision Date: 30 June 1870
• Citation: 41 Ga. 232
• Parties: A. T. CALHOUN, administrator, plaintiff in error. v. E. B. KELLOGG, defendant in error.*
• Court: Georgia Supreme Court

41 Ga. 232

A. T. CALHOUN, administrator, plaintiff in error. v. E. B. KELLOGG, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Statute of Limitations. Interrogatories. Before Judge Johnson. Muscogee Superior Court. November Term, 1869.

On the 19th of October, 1867, Kellogg brought complainant on an open account against A. T. Calhoun, as administrator of Alexander Calhoun, for the value of a half pipe of brandy, sold to deceased on the 1st of July, 1856. The pleas were the general issue, the Statute of Limitations (four years,) and plene administravit.

On the trial plaintiff's counsel offered to read in evidence, the answer of plaintiff to the following Interrogatory. "Look upon the annexed account and relate all you know of the purchase, by said Alexander in his lifetime of the goods therein charged, their value and all else you know that will make in favor of plaintiff, and show he ought to recover for said goods, in said suit, and annex any letters received from him relating to said goods, and state how you came to receive them." The account sued on was annexed. The answer was as follows: "The order was received from Calhoun in his lifetime, by Solomon V. Roberts, my agent, and the liquor forwarded by me, as per order, about the date of the account annexed to the Interrogatories, and was duly received by Calhoun. The value of the liquors as stated in that account was the market value of the liquor at that time, and were sold to Calhoun at that price. No part of that account has been paid."

Defendant's counsel objected to these Interrogatories, because the answer was not full, and because the order and letters were not attached. Plaintiff's attorneys waived a fuller answer, and the Court overruled the objection. The Interrogatories, (which wereas above, no more, no less,) were then read to the jury. Plaintiff\'s counsel proved that Alexander *Calhoun died on the 14th of August, 1856, and his widow became his administratrix, in August, 1856.

Upon this evidence the Court charged the jury, that if the account was due on the 1st of July, 1856, and Alexander Calhoun died in August, 1856, and this suit was begun in 1867, the Statute of Limitations had not run for four years against plaintiff prior to the commencement of suit. He was requested by defendant's counsel to charge the jury, 1st, If the account was due on the 1st of July, 1856, and Calhoun died on the 14th of August, 1856, and the suit was not brought till the 29th of October, 1867, then the plea of the Statute of Limitations of four years was made out, and unless plaintiff shows he was under some disability to sue, defendant should have a verdict; 2d, Sufficient time elapsed between the surrender of General Johnston and the passage of the Ordinance of the Convention in November, 1865, to complete the four years necessary to constitute a bar. The Court refused so to charge. The jury found for the plaintiff.

The allowance of said Interrogatories as evidence, the charge and the refusals to charge as requested, are assigned as error.

R. J. Moses, for plaintiff in error.

L. T. Downing, for defendant.

By the Court—BROWN, C. J., delivering the opinion.

After a careful examination of this case, I am satisfied that the defendant is not protected by the Statute of Limitations, if all the time is counted out which is covered by the different Acts of Limitation passed after the secession of the State. And the question is fairly made by the record, whether the Statute was legally suspended by the Acts passed during the war, and, if not, whether the healing or adopting clause in the new Constitution which was retroactive, revived the right of action, after the statute had fully run during the war, under the Acts, thenof force passed by a legal legislature.

*Whatever may have been said on this subject by others, I shall not stop to discuss the question, whetherthe Act passed by the different legislative bodies which assembled in this State during the war, were legal and binding or not. Each and every department of the State Government since the termination of the war has conceded their illegality. If we had been successful they would all have been held legal. As we failed we have been obliged to concede their illegality, and the people of the State in convention, have twice made their broad concession by the ratification and confirmation of such Acts, when not passed in aid of the rebellion, or in violation of the Constitution of the United States. Taking for granted then, what the people of Georgia have admitted in two different conventions, and what they have embodied in the Constitution of the State, I think the judicial authority in conformity to the action of the political department of the State Government must lay down the rule, that the Acts passed by the respective legislatures during the war, suspending the Statute of Limitations were illegal, and would have been nugatory and void, but for the Acts of the Conventions of 1865 and 1868, which adopted and gave validity to those Acts. Without this retroactive legislation, according to the repeated admissions of the State since the war, they would have had no force, and all rights in our Courts depending upon the operation of the Statute of Limitations must have been determined under our Acts of Limitation passed prior to the Ordinance of Secession, just as if no Acts on that subject had been passed during the war. And in that case, an action upon an account or promissory note, was barred at the end of the period fixed by the Statutes of Limitation passed by a legal legislature prior to the war, just as if there had been no legislation on the subject during that period. Apply that rule to this case, and the right of action was barred at an early period in the war.

Now let us see whether it has been revived by the confirmatory retroactive legislation since the war, which adopted such Acts passed during the war as were not in aid of the rebellion, (as it must now be called) or in violation of the *Constitution of the United States. And, I admit in advance, that there is no difficulty in any case when the Statute of Limitations, passed by a legal legislature before the war, had not fully run in favor of the defendant, before the date of the retroactive adopting Ordinance of 1865. If the defendant lacked but a single day of being fully protected by the Statute when the Ordinance was passed, the matter was within the legitimate control of the legislative power, and it might declare that all the time it had run should count nothing and that the right of action should not be barred for such time in future as it might designate, and the confirmation of that Act by the Constitution of 1868 would, in that case, apply and protect the right of action in the plaintiff. But if the Statute of Limitations passed by a legal legisla-ture had fully run in favor of the defendant, before the date of the Ordinance of 1865 the adopting clause in the Constitution of 1868 does not revive the right of action that was barred before the Act of confirmation.

The Constitution of 1868 expressly declares, that these several Acts of confirmation shall not be construed to divest vested rights, nor to make any act criminal otherwise not criminal; but they shall be construed as Acts of peace and to prevent injustice. Now it is well understood by every lawyer, that statutes of limitations are properly termed Acts of peace or of repose. And it is well known that it was the settled policy of the convention which made this Constitution, to do all that could constitutionally be done, for the relief of the people of Georgia, against old debts contracted before or during the war. This humane policy grew out of the general ruin, loss and destruction of property during the war. I hold, therefore, that this provision of the Constitution, when construed in the light of the surrounding circumstances, and with reference to the known policy of the convention, was not intended to stir up strife and litigation, by reviving any right of action already barred; but it was intended, so far as rights were to be affected by the statute of limitations, to ratify the illegal legislation in cases only, where the statute had not fully run in favor of the defendant, *when the Ordinance of 1865, on that subject, was passed, and to let all cases in which the statute had fully run, repose in peace just as if there had been no legislation on that subject during the war, and no retroactive confirmation of Acts passed during that period.

This view of the case is fully sustained by the legislative construction of these confirmatory Acts. The preamble of the Act in relation to the statute of limitations and for other purposes, passed the 16th of March, 1869, recites: "That much confusion has grown out of the distracted condition of affairs during the late war, and that doubts are entertained relative to the law of limitation of actions in this State, which should be put to rest." It then enacts: "That all Acts of the Legislature of this State, and all Ordinances of the Conventions of 1865 and 1868, which have the force and effect of law, which are retroactive in their character, relative to the statute of limitations, shall be held by the Courts of this State to be null and void, in all cases in which the statute had fully run before the passage of said retroactive legislation."

This is the positive declaration of the political department of the government, founded on the admission of the convention, confirmed by the Legislature, that the Acts suspending the statute of limitations...