Hardin v. Cass County

• Decision Date: 09 June 1890
• Parties: HARDIN v. CASS COUNTY.
• Court: U.S. District Court — Western District of Missouri

42 F. 652

HARDIN v. CASS COUNTY.

United States Circuit Court, W.D. Missouri, Western Division.

June 9, 1890

Karnes Holmes & Krauthoff, for plaintiff.

W. S Shirk and J. F. Lynn, for defendant.

PHILIPS J.

This is an action founded on certain bonds and coupons issued by the defendant county. The petition contains three counts. The first counts on eight bonds, of $500 each, issued August 26 1869, due six years after date. The second counts on three bonds and twenty-three coupons, two bonds for $500 each, and one for $250, dated July 11, 1870, due nine years after date with interest at 10 per cent. after maturity. The answer interposes the plea of the statute of limitations. It is conceded that the statute has run against the bonds set out in the first count, and the cause of action, therefore, is barred as to them. The statute of limitations is also interposed as to the cause of action set up in the second count of the petition. It appears that the statute of limitations has run as to coupons from 6 to 20, inclusive, attached to bonds 1, 2, and 13, described in the count, and the cause of action as to said coupons is therefore barred.

The more important question arises on the third count. At the time this action was begun the two bonds numbered 25 and 26 were prima facie barred by the statute of limitations. To avoid this plea, the plaintiff alleges that on the 5th day of July, 1889, 13 days before the statute of limitations had completed the bar, he instituted suit in this court on said bonds 25 and 26, and on the 12th day of September, 1889, he took a voluntary nonsuit therein, and instituted the present suit January 29, 1890, within the year allowed by the state statute after such nonsuit. To this defendant makes answer that in such action begun by plaintiff on the 5th day of July, 1889, he alleges 'that he was the owner and holder for value of bonds number 23 and 24, and of the bonds herein described as Nos. 25 and 26, and that said bonds remained due and unpaid, amounting in the aggregate to the sum of $2,000, and prayed judgment thereon; that at the time of the bringing of said suit the said plaintiff was not the owner of said bonds Nos. 23 and 24, nor did the said bonds 23 and 24 remain unpaid, but, to the contrary, no such bonds were ever issued by the defendant, and that bonds of that number had been issued by the defendant dated August 26, 1869, and due August 26, 1878; that judgment had then long since been rendered upon the first, in case No. 1,082, and the second in case number 942; and that the said judgment had long since been fully paid, and satisfaction of the same entered upon record, and said second bonds fully canceled. Defendant avers that said second bonds Nos. 23 and 24 were only mentioned and declared upon in plaintiff's petition for the purpose of enabling the plaintiff to perpetrate a fraud upon the jurisdiction of this court, by apparently giving the court jurisdiction as to the amount of said action; that this defendant at the September term, A.D. 1889, of this court, filed in said cause an answer stating the aforesaid facts, and that thereupon the plaintiff dismissed its said suit. The defendant avers that the bringing of said action, and the dismissal thereof as aforesaid, was not the commencement of an action, and the suffering of a nonsuit therein, within the meaning of the statute of the state of Missouri in such case made and provided. ' The court finds the facts thus charged by defendant are substantially true. The aggregate amount of the four bonds sued on in the first action was just $2,000; and, in order to increase 'the amount in dispute' to over $2,000, $100 of interest coupons attached to said bonds 25 and 26 were counted on. Waiving here any discussion of the question whether, under the act of March 3, 1887, said interest coupons could have availed to make the debt 'exclusive of interest' over $2,000, it is indisputable that, without the two bonds 23 and 24, the sum sued for was not over $1,100.

The question, therefore, to be answered is, was such action taken by plaintiff in the first attempt such institution of a suit as was contemplated by the law-maker as sufficient to stop the running of the statute of limitations? Section 6784, Rev. St. Mo., provides that, 'if any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, * * * such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed. ' A voluntary nonsuit, such as the voluntary dismissal of the action, is held by the supreme court of the state to be within the terms of this statute. It is also to be conceded to the plaintiff that authorities entitled to the greatest respect hold that a suit begun within the statutory period of limitation, in a court not having jurisdiction of the subject-matter, may be within the saving clause of the one-year provision. The leading case, perhaps, is that of Coffin v. Cottle, 16 Pick. 383. The plaintiff brought his action within the time limited by law against the administrator to recover a debt due from the intestate, obtained judgment, and took out an execution, which was returned nulla bona, and plaintiff then sued out a writ of sci. fa., suggesting waste, and before judgment the defendant's letters of administration were adjudicated to be void, on the ground that the probate judge, having an interest in the estate, was technically without jurisdiction to issue them. The plea to the sci. fa., alleging the invalidity of the judgment by reason of the nullity of the first letters of administration, was sustained by the court. Within one year thereafter the action was renewed, and it was held by the court that the first action was the institution of a suit, in contemplation of the statute. This case was followed in Caldwell v. Harding, 1 Low. 326. There the defendant was administrator appointed by the court in Massachusetts. The plaintiff brought his action against the administrator in the circuit court of the United States in New York, which was dismissed for want of jurisdiction. Afterwards, and within the year, he renewed the action against the administrator in the United States circuit court for the district of Massachusetts. LOWELL, J., applied the doctrine in Coffin v. Cottle to the facts of this case, and held that the action was not barred. This was predicated of the provision of the Massachusetts statute of limitations, which provided, inter alia, that if an action is brought in due season, and is abated or defeated in consequence of any defect in form, etc., or of a mistake in the form of proceeding, the plaintiff may commence a new action for the same cause within one year after the determination of the original suit. In Weathersly v. Weathersly, 31 Miss. 662, the plaintiff filed his bill in chancery, which was afterwards dismissed by the court for want of prosecution. Afterwards, on motion, the cause was reinstated on the docket, and in the further progress a final decree was rendered in favor of the complainant. Upon appeal to the supreme court, the decree of the lower court was reversed, on the ground that the trial court had no jurisdiction of the cause at the time the decree was rendered, 'inasmuch as the suit had been dismissed by the chancery court, and after the expiration of the time at which the dismissal took place all jurisdiction over the suit had ceased. ' Within two months after the judgment and reversal the suit was renewed. It was held that the first suit stopped the running of the statute of limitation. The court say:

'It is true that the decree rendered in behalf of the complainant was declared void because the jurisdiction of the chancery court over the cause had ceased before the decree was made; yet the decree, though void in law, was operative and effectual in form, in so much that the defendant found it necessary to resort to this court in order to have it declared a nullity. It was a valid decree in law until reversed by this court, and, being a decree of a court of competent jurisdiction, it could not have been properly set at naught until it was reversed.

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