Chicago v. Robert E. Jenkins.

• Decision Date: 30 September 1882
• Citation: 103 Ill. 588,1882 WL 5337
• Parties: CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.ROBERT E. JENKINS.
• Court: Illinois Supreme Court

103 Ill. 588

1882 WL 5337 (Ill.)

CHICAGO AND NORTHWESTERN RAILWAY COMPANY

v.ROBERT E. JENKINS.

Supreme Court of Illinois.

Fied at Ottawa May 12, 1882.Rehearing denied September Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding.

Mr. A. M. HERRINGTON, for the appellant:

Under the Bankrupt law the action in favor of the assignee was barred after the lapse of two years. Gifford v. Holmes, 98 U. S. 252; Bailey v. Glover, 21 Wall. 346; Moore v. State Ins. Co. 2 Tenn. Ch. Rep. 380.

If the assignee is not made a party to a pending action until more than two years after his appointment, his claim will be barred, for the amendment by which he is made a party will not relate back, and thereby make him a party ab initio, and thereby defeat the limitation. Cogdell v. Exume, 10 N. B. 327; S. C. 69; N. C. 464.

The rule, without an exception, is, that all causes of action are vested in the assignee upon the execution of the assignment, and the limitation begins to run from that time, and this applies equally to courts of equity and courts of law. Bailey v. Wier, 21 Wall. 342.

And the limitation applies to the State court as well as to the Federal courts. Comegg v. McCord, 11 Ala. 932; Archer v. Duvall, 1 Fla. 219.

This court has held that when a new party is brought into the suit against whom the Statute of Limitations has run, it may be pleaded, and the fact that the suit was pending does not stop the statute. Clark v. Manning, 95 Ill. 581; Crowl v. Nagle, 86 Ill. 440.

The bankruptcy of a plaintiff after suit brought may be pleaded, and thereby defeat the action, and the assignee will be compelled to proceed de novo. 1 Chitty's Pleading, (16th Am. ed.) 27; Kinnear v. Tarrant, 15 East, 630; Biggs et al. v. Cox, 4 Barn. & Cres. 921; Eyster v. Goff et al. 92 U. S. 524.

Where a party to an action has received his discharge in bankruptcy pending the action, he has no further interest in the suit. Knox v. Exchange Bank, 12 Wall. 379; Herranden v. Howard, 9 Id. 665.

In trover a lien must be specially pleaded, and can not be given in evidence under the general issue, and hence the pleas were proper, and were not subject to the objection that they amounted to the general issue. 1 Chitty's Pleading, (16th Am. ed.) 530; Hahn v. Ritter, 12 Ill. 80.

Messrs. SLEEPER & WHITON, for the appellee:

This action was pending in the name of Noyes & Messenger at the time the proceedings were had in bankruptcy, and Jenkins was admitted to prosecute the same in his own name. Revised Statutes of the United States, sec. 5047.

The provisions of sec. 5057, United States Statutes, only limits the maintenance of actions which are commenced by or against an assignee, and do not purport to interfere with the prosecution of actions pending in the name of the bankrupt at the time when the bankruptcy proceedings are commenced. Kane v. Pilcher, 7 B. Mon. 651; Judson v. Lathrop, 6 La. Ann. 587; Lotting v. Fassman, 17 N. B. 183; Walker v. Towner, Id. 285; Steele v. Moody, Id. 558; Wilt v. Stockton, 15 Id. 23; Norton v. Villebeuve, 13 Id. 304; Holbrook v. Brenner, 31 Ill. 501; Stevens v. Hauser, 39 N. Y. 302; In re Masterton, 4 N. B. 180; Sedgwick v. Casey, Id. 161; Dubois v. Anderson, 6 Id. 145.

Admitting the assignee to prosecute the suit, was only continuing the same, and was not the commencement of a new suit, and is analogous to continuing a suit by an executor after the plaintiff's death. Kane v. Pilcher, 7 B. Mon. 651; Morris et al. v. Swartz, 10 N. B. 305; Mirus et al. v. Swartz, 37 Texas, 13.

The special pleas were bad on special demurrer, as amounting to the general issue. Knobel v. Kucher, 33 Ill. 308; Illinois Central R. R. Co. v. Johnson, 34 Id. 389; Johnston v. University, 35 Id. 518; Kennedy v. Strong, 10 Johns. 289; Cullett v. Flinn, 5 Cow. 466; Hunt v. Cook, 19 Wis. 463.

The third plea professes to set up a lien on the paper for demurrage, and seeks to justify the conversion by reason of that lien, but in fact shows none. The rule recited does not pretend to create or impose any lien, and no agreement for any lien is stated. The law does not impose a lien as it does for freight. 2 Redfield on Railroads, title “Demurrage,” 191; Crommellin v. New York and Harlem R. R. Co. 10 Bosw. 77; 4 Keyes, 90.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that Noyes & Messenger, a business firm in Chicago, had consigned to them a quantity of paper, from Clinton, Iowa, by the road of appellant. It arrived at its depot in Chicago on the 4th of July, 1872. The consignees were afterwards notified of its arrival. On the 11th of that month they paid the freight and removed one dray load, but the company refused to deliver the balance of the paper until the consignees should pay five dollars a day for each day it remained on the track after twenty-four hours from the time of its arrival, which was claimed for demurrage. This the consignees refused to pay, and after a demand and refusal, brought trover to recover damages for its conversion. The defendant pleaded the general issue.

The case remained on the docket in this condition until in April, 1874, when Noyes & Messenger were declared bankrupts by the United States District Court, and appellee was appointed assignee of their estate, and the requisite assignment was made to him. No further action was taken in the case until on the 12th day of April, 1878, when, with the leave of the court, the company filed a plea that the plaintiffs had been adjudged bankrupts. Jenkins thereupon filed his petition for leave to be substituted as a party plaintiff, and to be permitted to prosecute the suit, and the substitution was made, and the leave granted by the court.

Afterwards, the company filed four pleas in bar of the action. The first, the general issue; second, the Statute of Limitations of two years; third, a plea that the defendant had the right to retain the property to secure its lien for demurrage; and fourth, the paper was delivered to defendant, to be held until plaintiffs should pay all moneys due or to become due on account of the transportation of the paper, and to pay all charges to become due for demurrage, unloading or warehousing the same. Appellee took issue on the first, and replied to the plea of the Statute of Limitations that the cause of action had accrued to Noyes & Messenger within two years of the commencement of the suit; that plaintiff had been substituted since the original plaintiffs had been declared bankrupts. To the third and fourth pleas he demurred specially that they severally amounted to the general issue. Afterwards, defendant filed a plea of the Statute of Limitations of five years, which was traversed. Subsequently the demurrer was heard to the replication to defendant's second plea, and it was carried back and sustained to that plea. The parties waived a jury, and by consent submitted the case to the court for trial, on an agreed statement of facts, and the court found the issues for plaintiff, and assessed his damages and rendered judgment for $1370.45. Defendant appealed to the Appellate Court for the First District, where the judgment was affirmed, and the case is brought to this court by appeal.

It is urged that the court erred in sustaining the demurrer to the plea averring that Noyes & Messenger had become bankrupts; that Jenkins had been appointed their assignee, and all of their property and rights were assigned to and became invested in him, and he became thereby entitled to the cause of action. This plea has no prayer of any kind, but is in the nature of, or was intended no doubt as, a plea in abatement. All pleas of that character must conclude with a prayer that the suit abate. It was for that reason subject to a demurrer. Again, if it could be held that the suit could be abated for the want of a proper party plaintiff, under the provision in the 5047th section of the United States Revised Statutes, appellee was substituted as plaintiff. That provision is this: “If at the time of the commencement of the proceeding in bankruptcy an action is pending in the name of the debtor for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignment, the assignee shall, if he requires it, be substituted to prosecute the action in his own name, in like manner and with like effect as if it had been originally commenced by him.” This is clear and emphatic that he shall be thus substituted. Nor does it fix or limit any time within which the substitution shall be made. The statute says it shall be done if the assignee shall require it. This substitution, then, was a sufficient replication to the plea, had it been good. It supplied the necessary and proper party plaintiff, and authorized him to prosecute the suit with like effect as had he been the original plaintiff in the case.

It is insisted that the court erred in sustaining the plea of limitations of the Bankrupt act. The 5057th section of the United States Statutes provides: “No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when the assignee is appointed.” Appellant contends, that inasmuch as more than two years expired after appellee was appointed assignee, and his substitution as plaintiff, the bar of this section became complete,--that the statute began to run as soon as he was appointed,--that an action accrued to him at that time, and that his substitution was the commencement of the suit by him. If this be the true construction of the...