Hutchings v. Lamson
| Decision Date | 03 October 1899 |
| Docket Number | 579. |
| Citation | 96 F. 720 |
| Parties | HUTCHINGS v. LAMSON et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
E. F Thompson, for plaintiff in error.
David M. Kirton, for defendants in error.
Before WOODS and JENKINS, Circuit Judges, and SEAMAN, District Judge.
This action was brought by the plaintiff in error, Charles F Hutchings, executor of the last will of George Fouler against S. Warren Lamson and Lorenzo J. Lamson, co-partners as Lamson Bros., for the purpose of enforcing against them a statutory liability as stockholders in the Cherokee Brilliant Coal & Mining Company, a corporation organized under the laws of Kansas. The declaration, as amended and added to contained special counts, designed to show the statutory liability according to the theory approved by this court in Rhodes v. Bank, 24 U.S.App. 607, 13 C.C.A. 612, and 66 F. 512, and also the appropriate common counts. To the special counts the court sustained demurrers (82 F. 960), and afterwards dismissed the action for failure of the plaintiff to file a sufficient bill of particulars with the common counts. Pending the consideration of the motion to dismiss for the reason stated, the plaintiff asked, but was denied, leave to take a nonsuit. Of the numerous specifications in the assignment of error those in form to be considered are upon the ruling on the demurrer, the requirement of a bill of particulars with the common counts, the denial of a nonsuit, and the dismissal of the action.
If the right to a nonsuit at any time before the jury retires, or, when a jury is waived, before judgment entered, be conceded, it is said the plaintiff was not harmed, because, the case having been dismissed as it was by the court, he is at liberty to bring another action. If that be so, it were certainly better to have avoided the question by conceding to him his rightful way out of court. Whether there was error in this respect we need not decide. The demurrer to the special counts of the declaration was both general and special. It was sustained, as the opinions of the court in the record show, on the ground that the action was barred by limitation of time, both under the statute of Kansas, where the right of action originated, and that of Illinois, where the action was brought. The ruling was erroneous, since both statutes contain exceptions. Unless a declaration shows affirmatively a case outside of all exceptions declared in a statute of limitations, the facts which exclude the exceptions must be set up by plea, and the question cannot be raised by demurrer.
It is urged by the defendant in error that the counts to which...
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...198 N.C. 397, 151 S.E. 857, 68 A. L.R. 210; Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, 146 A.L.R. 1356. See also: Hutchings v. Lamson, 7 Cir., 1899, 96 F. 720; Platt v. Wilmot, 1904, 193 U.S. 602, 24 S.Ct. 542, 48 L. Ed. 809; Kaplan v. Manhattan Life Ins. Co., 1939, 71 App.D.C. 250,......
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...death in another state at any time within such period notwithstanding a limitation of that state of a shorter period. See Hutchings v. Lamson, 7 Cir., 1899, 96 F. 720; Weaver v. Baltimore & Ohio R. Co., 1893, 21 D.C. 499, 10 Mackey's This is not a case where the question is: Does a cause of......
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White v. Govatos
...latter's statutory limitation relating to a similar cause of action has expired. The court preferred to follow the case of Hutchings v. Lamson, (7 Cir.) 96 F. 720, rather than the Theroux In Hutchings v. Lamson et al., (7 Cir.) 96 F. 720, the action was brought in a Federal Court in Illinoi......
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Rosenzweig v. Heller
...while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought." In Hutchins v. Lamson, 96 F. 720, 721, the rule thus stated: "The contention of the plaintiff in error that the Kansas statute of limitations alone can have any application ......