Fearing v. Glenn

• Decision Date: 12 March 1896
• Parties: FEARING v. GLENN.
• Court: U.S. Court of Appeals — Second Circuit

73 F. 116

FEARING v. GLENN.

United States Court of Appeals, Second Circuit.

March 12, 1896

This is a writ of error by George R. Fearing, the defendant in the court below, to review a judgment entered upon the verdict of a jury rendered by the direction of the trial judge. The action was brought to recover of the defendant two assessments or judicial calls upon the stockholders of the National Express & Transportation Company, a corporation of the state of Virginia, ordered by decrees of the circuit court of Henrico county, Va. The complaint proceeded upon two causes of action, the first being founded upon the call ordered December 14, 1880. The defendant, among other defenses, interposed that of the statute of limitations. Another issue litigated upon the trial was whether the Virginia court by whose decrees the assessments were ordered acquired jurisdiction of the action in which the decrees were made. Upon the trial the defendant requested the court to direct a verdict in his favor, as to the first cause of action, upon the ground that it did not accrue within six years before the commencement of the action. This request was refused, and thereupon the defendant requested to go to the jury upon several propositions of fact involved in the question whether the Virginia court acquired jurisdiction in the action. The trial judge refused these requests, and directed the jury to find for the plaintiff in both causes of action.

Joseph H. Choate (George Zabriskie and George W. Wickersham, of counsel), for plaintiff in error.

Burton N. Harrison (Arthur H. Masten, of counsel), for defendant in error.

Before PECKHAM, Circuit Justice, and WALLACE and SHIPMAN, Circuit judges.

WALLACE Circuit Judge (after stating the facts as above).

The statute of limitations was not a bar to a recovery on the first cause of action. It is not disputed that the cause of action accrued, and the statute of limitations began to run at the time of the assessment or judicial call ordered by the decree of the Virginia court, which, as to the first cause of action, was December 14, 1880. The defendant at that time resided in the state of Rhode Island, and since 1872 has not been a resident of New York; and the action, not having been brought by a resident of this state, should have been commenced within the time limited for bringing like actions by the law of Rhode Island. This is the rule of limitation prescribed by the statute of this state which provides that 'where a cause of action * * * accrues against a person who is not then a resident of the state, an action cannot be brought thereon in a court of the state against him or his personal representatives, after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the state. ' Code Civ Proc. Sec. 390. By the laws of Rhode Island, action founded upon causes of action like the present must 'be commenced and sued within six years next after the cause of such action shall accrue, and not after. ' Gen. Laws 1896, p. 810. The writ in the present action was issued, and placed for service in the hands of the United States marshal for the Southern district of New York, December 4, 1886, and was not served upon the defendant until December 16, 1886, two days after the expiration of six years from the time when the cause of action accrued.

It has long been settled that the courts of the United States, in the absence of legislation upon the subject by congress, recognize the statutes of limitations of the several states, and given them the same construction and effect which are given by the local tribunals. In McCluny v. Silliman, 3 Pet. 270, it was held that this rule was a necessary consequence of the provision of the judiciary act of 1789 (now section 721 of the Revised Statutes) that the laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States, except where treaties or acts or congress otherwise provide. It is quite immaterial that the state statute only prescribes the rule of limitation for actions brought 'in a court of the state. ' All of the various provisions relating to the limitation, upon the time of bringing actions are, by necessary implication, addressed only to actions brought in the courts of the state. These are the only actions as to which they could have any operation, and their operation upon the rights of litigants in the federal courts depends solely upon the force of federal authority.

It was the obvious purpose of the statute to substitute in behalf of defendants, residents of other states when the cause of action accrued, sued in this state by a nonresident, the law of their respective domiciles, in lieu of the law of this state in respect to the limitation of the time of bringing action. It operates in the present case to make as the law of the forum that statute of Rhode Island. By that statute, as construed by the highest court of Rhode Island, an action is commenced, so as to save the running of the bar, when the writ is issued, notwithstanding service is not made upon the defendant until after the expiration of the six years. Hail v. Spencer, 1 R.I. 17. It follows that the present...