Isaacks v. Jeffers
| Decision Date | 04 December 1944 |
| Docket Number | No. 2867.,2867. |
| Parties | ISAACKS v. JEFFERS. |
| Court | U.S. Court of Appeals — Tenth Circuit |
O. O. Askren, of Roswell, N. M. (G. T. Watts, of Roswell, N. M., on the brief), for appellant.
Edwin Mechem, of Las Cruces, N. M. (Seth & Montgomery, of Sante Fe, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
Writ of Certiorari Denied December 4, 1944. See 65 S.Ct. 270.
S. J. Isaacks, independent executor of the last will and testament of Martin V. Jeffers, deceased, instituted this action on March 8, 1940, against J. H. Jeffers and others, in the District Court of the United States for the District of New Mexico. Summons issued March 8, 1940 was returned unserved June 26, 1940, because plaintiff had failed to advance the marshal's fees and expenses. An alias summons issued July 20, 1940, was returned unserved August 12, 1941, for a like reason. Another alias summons was issued May 18, 1942. It was served on J. H. Jeffers on June 19, 1942. An amended complaint was filed August 3, 1942. On December 11, 1942, a second amended complaint was filed in which J. H. Jeffers was named as the sole defendant.
The original complaint in substance alleged that during his lifetime Martin V. Jeffers was the owner of a string of cattle branded RUN; that he and the defendant J. H. Jeffers were partners owning an equal interest in a string of cattle branded PX; that other members of the family also had their individual brands of cattle; that all these cattle were run together; that J. H. Jeffers was the manager and in charge of the RUN brand, the PX brand, as well as the brands belonging to other members of the family; that the defendant moved these cattle about from place to place, and bought and sold them at will; that in 1929 it was determined that a certain part of the common herd should be sold for the purpose of buying a large ranch in New Mexico; that an oral agreement was entered into between Martin V. Jeffers and all of the defendants; that J. H. Jeffers purchased the ranch for the benefit of all the parties; that a written memorandum was drawn up but was not signed; that the agreement provided that the cattle should be placed in a common herd on the ranch and that the ranch and cattle should be owned by the parties in the proportions set out in the agreement. The complaint further alleged that Martin V. Jeffers was the owner of a large herd of cattle operated under the management of J. H. Jeffers in the Republic of Mexico; that J. H. Jeffers and the other defendants refused to account for such cattle; that J. H. Jeffers as manager had sold numerous livestock from the herd in Mexico and had refused to account for them, and had converted the proceeds to his own use.
The prayer of the complaint was that J. H. Jeffers be required to account to plaintiff for the interest of Martin V. Jeffers in the common herd and that the interest of Martin V. Jeffers in the cattle and the real estate in the New Mexico ranch be determined and ascertained.
The amended complaint differed from the original complaint primarily in that it eliminated the allegations regarding the real estate constituting the New Mexico ranch and eliminated from the prayer any request for any interest in the real estate. The second amended complaint eliminated all the defendants except J. H. Jeffers and proceeded against him alone. It sought an accounting for the cattle branded RUN, which it is alleged J. H. Jeffers ran, handled and disposed of as the agent of Martin V. Jeffers, and an accounting of the PX cattle, owned by the partnership composed of Martin V. Jeffers and the defendant, J. H. Jeffers.
The answer denied that Martin V. Jeffers owned the RUN cattle or any interest in the PX cattle subsequent to 1924. It also pleaded the statute of limitations and laches, and that Elvira Jeffers, Martin Jeffers, Claxton Jeffers, Otis Jeffers, D. L. Jeffers, Herbert Jeffers, and W. B. Jeffers were indispensable parties. At the conclusion of the trial, the court ruled that the statute of limitations did not bar the action, but that the absence of indispensable parties required a dismissal of the action. It is from this ruling that the appeal is taken. The parties will be referred to as they appeared in the court below.
The case not having been determined on its merits, the facts will be considered only in so far as they bear upon the legal questions presented by the appeal. Whether the statute of limitations is a bar to the maintenance of the action depends upon two questions, first, whether the original complaint was filed in time, and if it is determined that it was, secondly, upon whether the amended complaint relates back to the time of the filing of the original complaint.
The statute of New Mexico controls the time within which such an action as this must be filed. Under Sec. 27-104, N.M. Stat.1941 Ann., such an action as this is barred unless it is brought within four years after it accrues. Sec. 27-106 of the same statute, among others, provides that an action for conversion shall not be deemed to have accrued until the conversion complained of shall have been discovered.
Plaintiff testified that shortly after the death of Martin V. Jeffers, he had a conversation with his children, including the defendant, in which he asked which of them had charge of deceased's cattle in Mexico; that the defendant replied that he had, and that he promised to supply the information concerning the same; that when he did not come in, plaintiff wrote him about March 24, 1938, asking him again to furnish the required information; that about a week later defendant came in and stated that he had nothing that belonged to his father. This fixes the time of the alleged conversion as of about April 1, 1938. The original petition filed March 8, 1940, was filed within ample time. But it is urged that the filing of the complaint did not toll the running of the statute of limitations because plaintiff did not diligently procure the service of summons prior to the expiration of the four year statutory period. The summons was served on defendant approximately sixty days after the four year period had expired.
The law of New Mexico controls as to the time within which an action must be commenced. However, the manner in which actions are commenced, when actions are deemed to have begun, the manner and method of serving process, all relate to procedure and are governed by the law of the forum in which the action is instituted. Collins v. Manville, 170 Ill. 614, 48 N.E. 914, 915, involved an action which arose in New York but was brought in the state courts of Illinois. The case involved the New York statute of limitations and also the question whether it had been filed in Illinois before the expiration of the New York statute of limitations. The Illinois court said:
Bond v. Pennsylvania R. Co., 124 Minn. 195, 144 N.W. 942, 943, concerns an action for wrongful death in Pennsylvania. The action was brought in Minnesota. The opinion of the Minnesota court states:
"* * * But the means by which our courts acquire jurisdiction, and the time at which the action is deemed as commenced, and all other matters pertaining to the procedure and to the remedy are determined and governed exclusively by our own statutes."
In Goldenberg v. Murphy, 108 U.S. 162, 2 S.Ct. 388, 27 L.Ed. 686, the Supreme Court held that when a suit was brought in the state court, the laws of that state will control in interpreting the provisions of a federal statute of limitations as to what constitutes the commencement of a suit.
Prior to the adoption of the Rules of Civil Procedure for the district courts of the United States, an action in a federal court of equity was deemed to have been commenced so as to interrupt the running of the statute of limitations by the filing of a complaint with a bona fide intent to prosecute the suit diligently, provided there was no unreasonable delay in the issuance or the service of the summons.1
We are of the opinion that since the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, we must now look to Rules 3 and 4 to determine when the action was commenced. Rule 3 provides that "a civil action is commenced by filing a complaint with the court." Rule 4 provides that: Under these rules we think the action was commenced and the running of the statute interrupted by the filing of the complaint, although the process was not actually served until slightly more than sixty days after the expiration of four years from the accrual of the action.2
The conduct of a plaintiff subsequent to the filing of a complaint might be such as...
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