Lamb v. Powder River Live Stock Co.

• Decision Date: 05 September 1904
• Docket Number: 1,813.
• Citation: 132 F. 434
• Parties: LAMB v. POWDER RIVER LIVE STOCK CO.
• Court: U.S. Court of Appeals — Eighth Circuit

132 F. 434

LAMB v. POWDER RIVER LIVE STOCK CO.

No. 1,813.

United States Court of Appeals, Eighth Circuit.

September 5, 1904

Lamb, a citizen and resident of Nebraska, commenced an action against the live stock company, a Colorado corporation, in the Circuit Court of the United States for the District of Colorado, on February 14, 1901, upon a judgment for the payment of money recovered by him against the company in a court of Nebraska. Defendant answered that it was a bona fide resident of Colorado; that the judgment sued upon was recovered March 4, 1895, more than three months prior to the commencement of the action, and was based upon a cause of action upon an express contract for the sale and delivery of merchandise, which accrued February 1, 1888-- more than six years before the present action was commenced. The court sustained this answer under the acts of April 29, 1895, and April 6, 1899 (Sess. Laws Colo. 1895, p. 239, c. 106; Id. 1899, p. 248, c. 113), overruled plaintiff's demurrer thereto, and, plaintiff declining to plead further rendered judgment for defendant. The act of April 29, 1895 is as follows:

'An act to limit the time in which suits may be brought upon causes of action accrued or judgments or decrees rendered without this state, and to repeal various acts in conflict or inconsistent therewith.

'Be it enacted by the General Assembly of the State of Colorado.

'Section 1. It shall be lawful for any person against whom an action shall be commenced in any court of this state, wherein the cause of action accrued without this state, upon a contract or agreement expressed or implied, or upon a sealed instrument in writing, or upon a judgment or decree rendered in any court without this state, more than six years before the commencement of the action in this state, to plead the same in bar of the action in this state; provided, that if said judgment or decree rendered without this state be based upon a cause of action which had accrued more than six years prior to the commencement of the action on such judgment or decree in this state, and the said judgment or decree had been rendered without this state more than three months prior to the bringing of such action thereon in this state, it shall be lawful for any person against whom any action on such judgment or decree shall be brought, to plead the same in bar thereof; and

'Provided further, that no defendant shall be allowed to plead the fact that the cause of action on which such judgment or decree was based accrued more than six (6) years, and that such judgment or decree was rendered without this state more than three (3) months before the commencement of said action thereon in this state, unless the defendant shall be a bona fide resident of this state.

'Sec 2. Section 16 of chapter 60 of the General Laws of 1877 concerning limitations; also, section 1 of an act entitled 'An act concerning limitations of actions in the courts of justice,' approved February 14, 1879; also, section No. 2178 of the General Statutes of the State of Colorado, the same being section 16 of chapter LXVI, and all other acts or parts of acts in conflict with this act, be and the same are hereby repealed.'

'Approved April 29, 1895.'

The act of April 6, 1899, adds a third or additional proviso to the first section of the prior act, and is styled and amendatory act in both its title and its body.

The statutes expressly repealed by the act of 1895 had theretofore prescribed the time within which the actions named in that act could be commenced. For sixteen years the period for suing upon a judgment or decree of any kind rendered without the state had been six years. The judgment sued upon was rendered less than two months before the act of 1895 was passed, and the cause of action upon which it is based accrued more than six years before the judgment was rendered. When the action in which the judgment was recovered was brought does not appear. The present action was commenced more than three months after the act of 1895 took effect, and within six years after the judgment was rendered.

T. M. Morrow (William T. Skelton, on the brief), for plaintiff in error.

E. E. Edmonds (J. C. Helm, on the brief), for defendant in error.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

VAN DEVANTER, Circuit Judge, after stating the facts as above, .

No change in the statute law of Colorado was made by the act of April 6, 1899 (Sess. Laws 1899, p. 248, c. 113). In form and in purpose it was an amendatory act conforming to the requirement of the state Constitution (article 5, Sec. 24) that when a law is amended it shall be reenacted and published at full length. It re-enacted the act of April 29 1895 (Sess. Laws 1895, p. 239, c. 106) without other change that to add a third proviso at the end of the first section. For reasons not material to the present inquiry, the added proviso is void, as held by this court in Keyser v. Lowell, 54 C.C.A. 574, 117 F. 400. The other provisions continued in force without interruption from the time when the earlier act took effect, and are to be considered as speaking from that date, instead of from the time of their re-enactment.

Was the shortened limitation in the act of 1895 intended to apply to actions upon judgments theretofore rendered? One contention of the plaintiff in error is that it must be given a prospective operation, and that to apply it to causes of action which accrued before it became effective is to permit it to operate retrospectively. The rule that statutes are to be given a prospective, rather than a retrospective, operation, is well recognized; but, like other rules of interpretation, it is resorted to to give effect to the presumed and reasonably probably intention of the Legislature, when the terms of the statute do not of themselves make the intention certain or clear, and cannot be invoked to change or defeat the intention when it is made obvious or manifest by the terms of the statute. Sohn v. Waterson, 17 Wall. 596, 21 L.Ed. 737; Stephens v. Cherokee Nation, 174 U.S. 445, 477, 19 Sup.Ct. 722, 43 L.Ed. 1041; Webster v. Cooper, 14 How. 488, 501, 14 L.Ed. 510. The act of 1895 contains internal and convincing evidence of the intention with which it was enacted. It is identical in its provisions with one of the statutes which it in terms repealed (section 2178 Gen.St. 1883), save that by two provisos it reduces, in some instances to three months, the period within which an action may be commenced upon- a judgment rendered without the state upon a cause of action accruing more than six years before the commencement of the action upon the judgment. This repeal and re-enactment of all of the provisons of the existing statute by a single act, and with no other change than the addition of the two provisos, should be given the same effect that would be given to an amendatory act accomplishing the same purpose. The re-enactment neutralized the repeal, and the new act should be construed as continuing in force the prior statute with such modification as was affected by the addition of the provisos. Bear Lake Irrigation Co. v. Garland, 164 U.S. 1, 11, 17 Sup.Ct. 7, 41 L.Ed. 327; Sutherland on Statutory Construction, Sec. 134. The causes of action named in the prior statute, other than upon a judgment rendered without the state upon a cause of action accruing more than six years before the commencement within the state of an action upon the judgment, were no more affected by the act of 1895 than if it had not been enacted. The modification or change is limited to actions upon a specified class of judgments. The provisos are broad enough in their language to readily embrace every subsequent action upon a judgment of this class, no matter when rendered, and the act expressly repeals the existing statute regulating the time for commencing such actions. It is hardly conceivable that when the Legislature was thus materially shortening the period of limitation it would have removed existing judgments from all limitation. Nor did the adoption of a new period of limitation in respect of future judgments require the complete abrogation of the old limitation, unless it was intended that the new one should apply to existing judgments.

Not infrequently in adopting new statutes of limitation special provision is expressly made for enforcing existing rights or action, but a provision of that character was not needed in this instance. Under the Constitution of the state (article 5, Sec. 19) the act of 1895, which contained no emergency clause, would not take effect for 90 days after its passage a period which is practically the equivalent of the shortest limitation prescribed in the act. According to the decisions of many courts, a statute of limitation, the operation of which is postponed to an appointed time in the future, is effectual from the date of its enactment as public notice of its provisions and prospective operation, and, if it be not otherwise provided, operates to fix or designate the time which will elapse between its passage and its taking effect as the period within which to begin proceedings for the enforcement of such existing rights of action as will fall within the bar of the statute when it takes effect. Stine v. Bennett, 13 Minn. 153 (Gil. 138); Russell v. Akeley Lumber Co., 45 Minn. 376, 48 N.W. 3; Duncan v. Cobb, 32 Minn. 460, 21 N.W. 714; Holcombe v. Tracy, 2 Minn. 241 (Gil. 201); Smith v. Morrison, 22 Pick. 430; Peirce v. Tobey, 5 Metc. (Mass.) 168; Bigelow v. Bemis, 2 Allen, 496; Korn v. Browne, 64 Pa. 55; Clay v. Iseminger, 187 Pa. 108, 41 A. 38, affirmed 185 U.S. 55, 22 Sup.Ct. 573, 46 L.Ed. 804; Hedger v. Rennaker, 3 Metc. (Ky.) 255; Lockhart v. Yeiser, 2 Bush, 231; Eaton v. Supervisors, 40 Wis. 668; Horbach v....