Graham v. Englemann

• Decision Date: 12 February 1920
• Docket Number: 227.
• Citation: 263 F. 166
• Parties: GRAHAM v. ENGLEMANN.
• Court: U.S. District Court — Southern District of Texas

263 F. 166

GRAHAM v. ENGLEMANN.

No. 227.

United States District Court, S.D. Texas, Houston Division.

February 12, 1920

Hutcheson Bryan & Dyess, of Houston, Tex., for plaintiff.

Andrews Streetman, Logue & Mobley, of Houston, Tex., for defendant.

HUTCHESON District Judge.

The gist of plaintiff's action is a claim that, induced by the fraudulent representations set out in her petition, she purchased from the defendant a certain tract of land in Texas, said land being not of the value or kind represented by the defendant, to her resulting damage. The defendant denies generally, and pleads the statutes of limitation of two and four years, to which the plaintiff replies that the defendant's absences from the state have, under article 5702, Revised Statutes, tolled the statute sufficiently to prevent the bar.

I find with the plaintiff upon her claim of deceit and damage, and I also find that, since plaintiff's cause of action accrued, the aggregate of defendant's absences from the state has been such that, if those periods are not counted against the plaintiff, her action has not been barred.

The defendant claims that the statute has no application to the defendant, for the reason that the courts of Texas have construed the statute as applicable only to resident debtors while the defendant is not, and never has been, a resident of the state of Texas. The plaintiff claims that, under both the literal words of the statute and the settled construction given such statute, it does apply. Upon the question of the application of the suspensory statute the grave controversy in this case arises.

It is not disputed that the general rule which controls this case is that, where statutes of limitation are invoked, the lex fori governs as well in matters of exception from the bar fixed by statute as in matters of the actual bar itself. 25 Cyc. 1019, 1020. Article 5702, Revised Statutes, was enacted on the 5th of February, 1841, and has been carried in the statutes ever since, with no change in its phraseology. It reads as follows:

Art. 5702 (3367). 'Time of Temporary Absence Not Counted. If any person against whom there shall be cause of action shall be without the limits of this state at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the state, and the time of such person's absence shall not be accounted or taken as a part of the time limited by any of the provisions of this title. (Act Feb. 5, 1841, sec. 22, P.D. 24.)'

Provisions in statutes of limitation tolling the statute because of absence of the debtor or obligor find their origin in the statutes of 4 and 5 Anne (25 Cyc. 1128), which statute declares that, if any person against whom there shall be any cause of action be, at the time such action accrues, beyond the seas, the action may be brought against him upon his return within the time limit for bringing such action. Under this statute the English courts have held that the exception is not limited to citizens, residents, or persons who have before the accrual of the cause of action been within the jurisdiction, but that the exception applies to all persons, irrespective of their former presence within the realm. This statute has been adopted with varying phraseology in the various states of the Union, and where the words of the statute do not expressly confine its application to residents, the construction given by the English courts is followed. 25 Cyc. 1237. See dissenting opinion, Snoddy v. Cage, 5 Tex. 106.

The defendant concedes the general rule, but, asserting that the courts of Texas have adopted a different construction, invokes the settled rule that United States courts will follow the construction given by the Supreme Court of the state to the statutes of limitation of that state.

It must be conceded that the decisions of the highest court of the state upon the construction of a state statute of limitation, where not in conflict with some principle of the United States Constitution, treaties, or acts of Congress, conclude this court in law cases. Ennis Waterworks v. Ennis, 233 U.S. 656, 34 Sup.Ct. 767, 58 L.Ed. 1139; Alice State Bank v. Houston Pasture Co., 247 U.S. 240, 38 Sup.Ct. 496, 62 L.Ed. 1096; Dibble v. Bellingham Bay Land Co., 163 U.S. 64, 16 Sup.Ct. 939, 41 L.Ed. 72; Quinette v. Pullman Co., 229 F. 333, 143 C.C.A. 453; City of Memphis v. Board of Directors (D.C.) 231 F. 217. This rule, however applies alone to decisions of the highest court of the state. U.S. Tel. Co. v. Central Tel. Co., 202 F. 66, 122 C.C.A. 86; Patapsco Water Co. v. Morrison, 18 F. Cas. 1284, No. 10792; Freund v. Yaegerman (C.C.) 27 F. 248.

In Continental Securities Co. v. Interborough R.T. Co. (C.C.) 165 F. 959, the court says:

'The highest court of the state of New York is our Court of Appeals. * * * The federal courts are not bound by any decision of any Appellate Division of the Supreme Court. * * * The Appellate Divisions cannot convert themselves into the highest court of the state, or into courts of 'last resort,' * * * by exercising a discretion in refusing leave to prosecute actions.'

In Federal Lead Co. v. Swyers, 161 F. 689, 88 C.C.A. 548, the court says:

'The decisions of the Missouri Courts of Appeals, while entitled to respectful consideration, are not the decisions of the highest judicial tribunal of the state, which are alone binding on the federal courts in their construction of local statutes.'

Nor are the federal courts controlled by mere dicta of a state court. Carroll v. Carroll, 16 How. 275, 14 L.Ed. 936; Matz v. Chicago R.R. (C.C.) 85 F. 180; In re Sullivan, 148 F. 815, 78 C.C.A. 505; Southern R.R. v. Simpson, 131 F. 705, 65 C.C.A. 563. Nor does a construction of a statute, based merely upon implications from the language of a judicial opinion, control the federal court. Caesar v. Capell (C.C.) 83 F. 403; Adelbert College v. Wabash R.R., 171 F. 810, 96 C.C.A. 465, 17 Ann.Cas. 1204.

Applying these principles to this case, it will appear that, if the Supreme Court of Texas has established a settled rule of construction of this statute upon facts substantially identical with those at bar, though that rule be contrary to the received and settled rule of construction elsewhere, this court is bound to follow the Texas rule. On the other hand, this court is at liberty to follow the general rule of construction, if the decisions of the state of Texas relied upon by the defendant are either decisions of inferior courts, constitute merely dicta of the Supreme Court, or merely give rise to implications which might result from following the judicial expression to its logical conclusion, when applied to other facts than those adjudicated.

A careful review of the authorities cited convinces me that the Supreme Court of Texas has never passed upon facts identical with those at bar, and that it has never established a rule of construction for this case to which I am committed. It is true that the Texas courts have often used the words 'resident' and 'nonresident' in applying the statute, but they have never denied the application of the statute under facts such as those in this case.

I find that the defendant is not and never has been a resident of Texas, but that he was in the state of Texas at the time the right which underlies plaintiff's suit was conferred upon her, and at the time when the cause of action which plaintiff asserts accrued, and I am of the opinion that no decision of the Supreme Court of Texas deprives her of the benefit of this statute. A brief review of these decisions will, I think, make clear the correctness of this position.

In Snoddy v. Cage, 5 Tex. 106, Love v. Doak, 5 Tex. 343, and Moore v. Hendrick, 8 Tex. 253, the point decided was that the statute could have no application to a person who had never been in Texas, and therefore could not be said to have returned. While in all these cases dicta were used tending to restrict the statute to residents of the state, in the last-named case the following language was used:

The statute is 'restricted to causes of action against persons who had been within the limits of the Republic, had absented themselves and had returned; * * * that no one could be said to return to a country in which he had never been present. ' (Italics mine.)

In Fisher v. Phelps, 21 Tex. 55, the court held the statute applicable to a person who had been in the state, had removed out of it, and...