Carscadden v. Territory of Alaska

• Citation: 105 F.2d 377
• Decision Date: 28 June 1939
• Docket Number: No. 8894.,8894.
• Parties: CARSCADDEN v. TERRITORY OF ALASKA.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

105 F.2d 377 (1939)

CARSCADDEN v. TERRITORY OF ALASKA.

No. 8894.

Circuit Court of Appeals, Ninth Circuit.

June 28, 1939.

R. E. Robertson, of Juneau, Alaska (Manley C. Davidson and Rex B. Goodcell, both of Los Angeles, Cal., and M. G. Monagle, of Juneau, Alaska, of counsel), for appellant.

James S. Truitt, Atty. Gen. for Alaska, for Territory of Alaska.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Appeal is taken from a judgment dismissing with prejudice appellant's claim to property escheated to the Territory of Alaska, after demurrer had been sustained to the petition and appellant's refusal to plead further.

One Sarah Carscadden, in 1903, was committed to an asylum for the insane. Her son, who is the appellant, left the Territory of Alaska in 1911, and has been absent therefrom since that time.

By § 1, Ch. 40, Alaska Session Laws 1921, it was declared that: "When any person shall die intestate, without heirs, leaving real or personal property in the Territory, the same shall escheat to and become the property of the territory." By § 3, it was provided that: "Whenever the administrator of any estate shall find that his intestate left no heirs, or shall, after due search fail to find that his intestate left heirs, such facts shall be certified by the administrator to the probate court, and it shall then be the duty of the latter, as soon as the administrator's final account is settled, to enter a decree adjudging that all the balance of the estate, whether real or personal property, has escheated to and become the property of the Territory." See Compiled Laws of Alaska, 1933, §§ 2895, 2897. This controversy revolves around § 7 of the 1921 act, which provided in part: "Within ten years after the judgment in any proceeding had under this act, a person not a party or privy to such proceeding may file a petition in the District Court showing his claim or right to the property or the proceeds thereof, and that he had no knowledge of the proceeding provided for in the foregoing sections. * * * All persons who fail to appear and file their petitions within the time limited by law are forever barred * * *." Other parts of the section, omitted from the above, provide other steps of procedure enabling the claimant to obtain the escheated property.

On July 13, 1926, Sarah Carscadden died in a sanitarium at Portland, Oregon, leaving personal property in the Territory of Alaska amounting to $2,278.83. An administrator of her estate was appointed in the territory, and on October 1, 1928, the probate court there made an order declaring that the property then in the estate, amounting to $1,921.88, had escheated to the territory, and such amount was paid to the proper territorial officer.

By the act approved May 3, 1933, effective August 1, 1933 (Ch. 95, Alaska Session Laws, 1933) the word "seven" was substituted for the word "ten" appearing in § 7 of the 1921 act, but the remainder of § 7 as quoted above remained unchanged. Compiled Laws of Alaska, 1933, § 2901.

Appellant believed that the deceased was still living and confined to an asylum for the insane, until notified of her death in August, 1935, and on February 5, 1936, first learned of the probate proceedings. On March 28, 1936, appellant filed against appellee his petition "In the District Court for the Territory of Alaska", alleging the above facts. It was subsequently amended to include the allegation that appellant was not a "party or privy" to the mentioned probate proceedings.

It can be seen that the petition was filed within ten, but not seven, years after the date of the order declaring the escheat, and within two years, one month, and twenty-seven days after the effective date of the amendment made in 1933. Appellee's demurrer to the amended petition, on the ground that such petition was not filed within the time limited by Compiled Laws of Alaska, 1933, § 2901, was sustained. Appellant declined to plead further, and judgment of dismissal, with prejudice, was entered, from which this appeal is taken.

It has often happened that a statute of limitations in effect when a cause of action accrues, is, before suit is commenced on such cause of action, amended, and the time, within which such suit might be brought, is shortened. Such amendment is valid as to existing causes of action, if it leaves a reasonable time after its enactment within which suit on such causes of action may be brought,¹ but if not, it is invalid.²

To determine whether or not a subsequent statute is designed to affect causes of action then accrued, is the first question to be considered. Regarding that question it is said in Sohn v. Waterson, 84 U.S. 596, 17 Wall. 596, 599, 21 L.Ed. 737: "A statute of limitations may, undoubtedly, have effect upon actions which have already accrued as well as upon actions which accrue after its passage. Whether it does so or not will depend upon the language of the act, and the apparent intent of the legislature to be gathered therefrom. When a statute declares generally that no action, or no action of a certain class, shall be brought except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in the future. But if an action accrued more than the limited time before the statute was passed a literal interpretation of the statute would have the effect of absolutely barring such action at once. It will be presumed that such was not the intent of the legislature. Such an intent would be unconstitutional. To avoid such a result, and to give the statute a construction that will enable it to stand, courts have given it a prospective operation. In doing this, three different modes have been adopted by different courts. * * *" The three modes are set out in the opinion.

The first method is to construe the new statute as applicable only to causes of action arising after enactment of such statute.³ The objection to this rule is said to be that it leaves all causes of action, which arose prior to the enactment of the new statute, without any governing statute of limitations whatever "which, it is presumed, could not have been intended". Sohn v. Waterson, 84 U.S. 596, 17 Wall. 596, 599, 21 L.Ed. 737.

The second method is to construe the new statute to include causes of action arising after enactment of the new statute and existing causes of action for which a reasonable time still remained under the new statute within which suit might be brought. The objection to this method is said to be that it "does not seem to be founded on any better principle than the former". Sohn v. Waterson, supra, 17 Wall. 600, 21 L.Ed. 737.

The third method is to construe the statute as including causes of action arising both prior and subsequent to the enactment of the statute, but as to the former, the time specified in the new statute is calculated from the effective date of such statute.⁴ This method was approved in Sohn v. Waterson, supra, and had previously been approved in Ross v. Duval, 38 U.S. 44, 13 Pet. 44, 62, 10 L.Ed. 51, and Lewis v. Lewis, 48 U.S. 776, 7 How. 776, 779, 12 L.Ed. 909. It has since been consistently followed.⁵

Appellee relies on the cases in which it is stated the subsequent statute may apply to existing causes of action if there is a reasonable time left for commencing suit on such causes of action.⁶ These cases do not approve the second method of construction, and are not in point. They either consider statutes which expressly were applicable to existing causes of action, but which were given time within which suit might be brought, or they considered state statutes which had been so construed by the state court. In none of them was there any question calling for construction, because the statute was clear, or had been so construed by the paramount authority of the state.

Here, notwithstanding appellant had a reasonable time under the new statute within which to bring his suit, the second method should not have been applied, because it was held objectionable in Sohn v. Waterson, supra. The third method is applicable and controlling, and therefore appellant had seven years from the effective date of the 1933 amendment to bring the instant action.

The foregoing conclusion is reached by using our independent judgment. Whether or not we may do so, is the paramount question to be decided.

In 1874, the Supreme Court of the Territory of Montana made a decision construing its code of practice. It appeared that the same question had "been decided differently by different State courts under precisely the same code of practice". Upon appeal, the Supreme Court of the United States held that it "should, in this conflict of authority, adopt the ruling of the Supreme Court of Montana in the consideration of it". Sweeney v. Lomme, 89 U.S. 208, 22 Wall. 208, 213, 22 L.Ed. 727. The doctrine⁷ grew until it was declared in Matos v. Hermanos, 300 U.S. 429, 432, 57 S.Ct. 529, 81 L.Ed. 728, that the federal courts must give "due deference" to the decisions of the territorial courts on local questions and sustain them unless the federal courts entertained "a sense of clear error committed". At that time the doctrine of Swift v. Tyson, 41 U.S. 1, 16 Pet. 1, 10 L.Ed. 865, prevailed, and determination of whether a question was "general" or "local" evidently was to be determined by the rule announced in that case.

The first act of Congress relating to Alaska was the Act of July 27, 1868 (15 Stat. 240). It extended certain laws of the United States to the territory of Alaska, and provided that "any district court of the United States in California or Oregon, or * * * the district courts of Washington * * * shall have original jurisdiction, and may take cognizance of all cases arising under this act and the several laws hereby extended over the territory * * *." Section 7. No change in this respect was made by the Revised Statutes. See §§...