Clark v. Mechanics' Am. Nat. Bank

• Decision Date: 24 August 1922
• Docket Number: 6034.
• Citation: 282 F. 589
• Parties: CLARK v. MECHANICS' AMERICAN NAT. BANK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F. 589

CLARK v. MECHANICS' AMERICAN NAT. BANK et al.

No. 6034.

United States Court of Appeals, Eighth Circuit.

August 24, 1922

Dougald McMillan, of Arkadelphia, Ark., and W. H. Arnold and W. H. Arnold, Jr., both of Texarkana, Ark. (John H. McMillan and David W. McMillan, both of Arkadelphia, Ark., and David C. Arnold, of Texarkana, Ark., of counsel), for appellant.

George B. Rose, of Little Rock, Ark., Joseph Dickson Jr., of St Louis, Mo., and J. G. Sain, of Nashville, Ark., for appellees.

Before CARLAND, Circuit Judge, and TRIEBER and MUNGER, District judges.

MUNGERDistrict Judge.

In a suit to foreclose certain mortgages upon the property of a railway company, the appellant was denied a lien, and appeals from the decree.

Appellant claimed a lien under the provisions of the statute of Arkansas (section 8555 of Crawford & Moses' Digest, 1921) which gives to certain mechanics, laborers, and others who furnish labor or supplies in the building or equipment of a railroad a lien upon the railroad for the amount so furnished.It is provided by the next succeeding section of the statutes that--

'The lien mentioned in the preceding section shall not be effectual unless suit shall be brought upon the claim, or the claim shall be filed by order of court with the receiver of said railroad within one year after said claim shall have accrued.'

The last item furnished by appellant was supplied on June 30 1918.He was drafted into the army on August 6, 1918, and he served continuously until August 4, 1919, when he was honorably discharged.He instituted his action on June 21, 1920.Suit was not brought upon this claim of appellant within a year, and for this reason appellees claim that appellant is not entitled to a lien; but suit was brought by appellant within a year after the claim accrued, if the period of military service of appellant during the late war is excluded, and appellant maintains that the suit was therefore brought within the time allowed to him by law.The question thus presented depends upon the proper construction of certain sections of the Act of Congress passed March 8, 1918, known as the Soldiers' and Sailors' Relief Act(40 Stat. 440).Sections 100and205 of the act(Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3078 1/4a, 3078 1/4e) read as follows:

'Sec. 100.That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights during their term of service and to enable them to devote their entire energy to the military needs of the nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war.'

'Sec. 205.That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service.'

The act purports to cover suits in state or territorial courts as well as suits in national courts(sections 101 (4), and102 (1), being sections 3078 1/4aa,3078 1/4aaa) and Congress possessed power to regulate proceedings in the state courts by virtue of its power to wage war (Stewart v. Kahn,11 Wall. 493, 20 L.Ed. 176;Erickson v. Macy,231 N.Y. 86, 131 N.E. 744, 16 A.L.R. 1322).It is the claim of the appellees that this act of Congress does not govern this case, because it was only intended to modify those statutes properly called statutes of limitation, by which times are fixed for the bringing of actions, and it was not intended to apply to a statute creating a right of action which did not exist independently of the statute, and where the time for bringing such an action is...