Davis v. Mills

• Decision Date: 25 February 1903
• Docket Number: 64.
• Citation: 121 F. 703
• Parties: DAVIS v. Mills et al.
• Court: U.S. Court of Appeals — Second Circuit

121 F. 703

DAVIS v. Mills et al.

No. 64.

United States Court of Appeals, Second Circuit.

February 25, 1903

John A Shelton, for plaintiff in error.

W. W Hyde, for defendants in error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM.

The plaintiff is a citizen of Montana, and the owner, by assignment, of three causes of action (for goods sold and on promissory note) against the Obelisk Mining & Concentrating Company, a Montana corporation. The indebtedness of the company upon these causes of action accrued July 31, 1892 July 1, 1892, and December 12, 1892, respectively.

The defendants are citizens of Connecticut, resident continuously therein for more than 12 years last past, and at all the times mentioned in the complaint were trustees of the said company. The statutes of Montana provide that within 20 days from the 1st day of September every such company shall annually file a specified report, and that, if it 'shall fail to do so all the trustees of the company shall be jointly and severally liable for all debts of the company then existing, and for all that shall be contracted before such report shall be made. ' Section 460 of chapter 25 of division 5 of the Compiled Statutes of Montana, which was in force when the cause of action arose, re-enacted as section 451 of the Civil Code of Montana, which went into effect July 1, 1895.

The Obelisk Company did not make and file such report within 20 days from the 1st day of September, 1893, or at any time, except on September 20, 1890, and on September 1, 1892. It is conceded that, under the decisions in Montana, the cause of action accrued against the directors upon the failure to file the first report due next after the debt matured, and that the continuance of the default on the part of the directors in successive years did not have the effect of renewing their liability. The three causes of action here sued upon therefore accrued against the defendants not later than September 22, 1893. This action was brought July 30, 1897, to enforce a joint and several liability of defendants for the debts of the company above set forth.

The defendants have demurred to the complaint, assigning as three separate grounds of demurrer that the causes of action all accrued more than one, more than two, and more than three years prior to the commencement of the action.

The plaintiff contends that the defense of the statute of limitations cannot be set up by demurrer. This is wholly a question of Connecticut practice, and there is authority supporting this contention in O'Connor v. Waterbury, 69 Conn. 206, 37 A. 499. But in a later cause in the same state it was held that, where there was no possible question of the avoidance of a statute of limitations by a new promise, so that plaintiff need not be given an opportunity to reply to such a defense, a different rule applied. 'The plaintiff stated its claim fully, and the statement showed that it could not under any circumstances maintain it against the defendant's objection. It was therefore his right to set this up by demurrer. ' Hartford & C.R.R. v. Montague, 72 Conn. 692, 45 A. 961.

Defendants rely upon a Connecticut statute which reads as follows: 'Sec. 1379. No suit for any forfeiture upon any penal statute shall be brought, but within one year next after the commission of the offense. ' Referring to this statute, the Supreme Court of Errors in Connecticut has held that it is applicable only to a statute 'that declares a forfeiture and deals with an offense. And it must be a forfeiture and an offense in the sense in which these terms are used in a penal statute. * * * Penal statutes, strictly and properly, are those imposing punishment for an offense against the state. And the expression 'penal statutes' does not ordinarily include statutes which give a private action against a wrongdoer. ' Plumb v. Griffin, 74 Conn. 132, 50 A. 1. See, also, Wells v. Cooper, 57 Conn. 52, 17 A. 281; Borough v. Hall, 64 Conn. 426, 30 A. 47.

We are of the opinion that the provisions of section 1379 do not apply to such a cause of action as is set forth in the complaint.

Defendants further rely upon sections 45 and 50 of the Compiled Statutes of Montana, which read as follows:

'Sec. 45. (1) In an action for a penalty or forfeiture, when the action is given to an individual, or to an individual and the territory, except where the statute imposing it prescribes a different limitation; (2) an action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process shall be commenced within one year.'

'Sec. 50. If when the cause of action shall accrue against a person he is out of the territory, the action may be commenced within the time herein limited, after his return to the territory; and if after the cause of action shall have

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