Custer v. Cutcheon, 422

• Decision Date: 18 May 1931
• Docket Number: No. 422,422
• Citation: 51 S.Ct. 530,283 U.S. 514,75 L.Ed. 1239
• Parties: CUSTER v. McCUTCHEON, U. S. Marshal
• Court: U.S. Supreme Court

283 U.S. 514

51 S.Ct. 530

75 L.Ed. 1239

CUSTER

v McCUTCHEON, U. S. Marshal.

No. 422.

Argued April 20, 1931.

Decided May 18, 1931.

Messrs. J. F. Nugent, of Boise, Idaho, and James R. Bothwell, of Twin Falls, Idaho, for petitioner.

Mr. Whitney North Seymour, of Washington, D. C., for respondent.

Mr. Justice ROBERTS delivered the opinion of the Court.

The respondent's predecessor, as United States Marshal, on October 9, 1929, levied an execution issued September 21, 1929, out of the District Court for Idaho, against the petitioner, upon a judgment entered in that court March 7, 1921, in favor of the United States. On October 10, 1929, the petitioner filed a bill in the same court to restrain the marshal from proceeding further under the execution process, on the ground that section 6910 of the Idaho Compiled Statutes of 1919 permitted the issuance of execution only within five years from the date of rendition of judgment. The District Court, on motion of the United States, dismissed the bill, and the Circuit Court of Appeals affirmed its judgment¹ This court granted certiorari.²

The question presented is whether the Idaho statute, which has been adopted as governing execution process in the United States District Court for that state, is applicable to an execution issued on behalf of the United States as a judgment plaintiff. The statute follows:

'The party in whose favor judgment is given, may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.'

It has become a part of the law of procedure in the United States Court by virtue of section 916 of the Revised Statutes,³ which provides:

'The party recovering a judgment in any common-law cause in any district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are provided in like causes by the laws of the State in which such court is held, or by any such laws which may subsequently be enacted and adopted by general rules of such district court; and such courts may, from time to time, by general rules, adopt such State laws as may be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise;'

-and Standing Rule 73 of the District Court, which is:

'Subject to the provisions of the acts of Congress in relation to executions, judgments in actions at law shall be enforced in the same manner as such judgments in the State Courts are enforced, and the State laws in relation to executions, sales, exemptions, rights of purchasers, right of judgment creditors and judgment debtors, redemptions, liens of judgments and of decrees and proceedings supplementary to execution as said provisions now exist or as they shall exist at the time in question are adopted as rules of this Court; and the Marshal of this Court shall conform his proceedings thereto. * * *'

As a result of section 916 and Rule 73, the Idaho statute is applicable to proceedings in the District Court as if it had been passed by Congress. In the language of Rule 73, it has been 'adopted' as a rule of the court. While it is clear that it governs executions issued on judgments recovered by other litigants, the lower courts held that it does not applyto t hose sued out by the United States. This ruling is based upon the familiar doctrine that, in the absence of specific provision to the contrary, statutes of limitation do not bind the sovereign. The petitioner insists that this act is not in the ordinary sense of the term a statute of limitation, that it does not affect the time within which a suit may be brought upon the judgment, but that on the contrary it grants the right of execution, and the time element is an integral part of the statutory right conferred. Petitioner says that in this aspect the United States as plaintiff is on no better footing than any other litigant availing itself of the provisions of the statute. A proper decision depends upon the scope and meaning to be given to Rev. St. § 916, and the rule of court.

Section 14 of the Judiciary Act of 1789⁴ conferred upon the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which might be necessary for the exercise of their jurisdiction agreeably to the principles and usages of law. These words comprehended executions on judgments. Wayman v. Southard, 10 Wheat. 1, 22, 6 L. Ed. 253.

At the same session an act was passed 'To regulate Processes in the Courts of the United States.'⁵ It provided that:

'Until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style, and modes of process * * * in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same.'

This act was to remain in force only until the expiration of the next session of Congress. It was followed by that of May 8, 1792;⁶ and thereafter by other acts,⁷ the last of which became Rev. St. § 916.

Section 916 prohibits the courts of the United States from adopting, recognizing, or giving effect to any form of execution, except such as was, at the time of the passage of the act of 1872, from which it was derived, or has subsequently become by adoption of state statutes, a writ authorized by the laws of the state. Fink v. O'Neil, 106 U. S. 272, 278, 1 S. Ct. 325, 330, 27 L. Ed. 196.

This court has twice considered the bearing of these statutes upon executions issued on judgments in favor of the United States. In United States v. Knight, 14 Pet. 301, 10 L. Ed. 465, it was held that the act of 1828, supra, gave to debtors in prison under executions from the courts of the United States, at its suit, the privilege of...