Matheny v. Porter
| Decision Date | 26 November 1946 |
| Docket Number | No. 3352.,3352. |
| Citation | 158 F.2d 478 |
| Parties | MATHENY v. PORTER, Price Administrator. |
| Court | U.S. Court of Appeals — Tenth Circuit |
V. G. Seavy, of Pueblo, Colo., for appellant.
Max D. Melville, Regional Litigation Atty., of Denver, Colo., George Moncharsh, Deputy Administrator for Enforcement, David London, Director, Litigation Division, Albert M. Dreyer, Chief, Appellate Branch, and Walter D. Murphy, all of Washington, D. C., for appellee.
Before BRATTON and MURRAH, Circuit Judges, and CHANDLER, District Judge.
This appeal brings here for review a judgment of the United States Court for Colorado. The action was instituted by the Administrator, Office of Price Administration, to recover damages for the sale of used automobiles in the course of trade or business at prices in excess of the ceiling prices in effect at the time, and for an injunction to restrain further violations of the Emergency Price Control Act, as amended, 50 U.S.C.A.Appendix § 901 et seq. Judgment was rendered for the Administrator for damages in excess of $2600, and the defendant was enjoined from engaging in further acts, practices, or defaults in violation of the Act. The defendant appealed.
The complaint alleged in general language that at all times pertinent thereto the defendant sold motor vehicles in the course of trade or business at prices greater that the maximum prices fixed under the Act. The dates of the several sales relied upon to constitute the cause of action for damages were not set forth. Neither was it pleaded that the sales took place within one year prior to the institution of the action. When the cause came on for trial, the defendant interposed a motion to dismiss the action on the ground that the complaint failed to allege that the cause of action accrued within one year prior to the filing of the suit. The court denied the motion. Section 205(e) of the Act, 50 U.S.C.A.Appendix § 925(e), provides in presently material part that a suit of this kind for damages under the subsection may be brought in any court of competent jurisdiction, and that it shall be brought within one year after the occurrence of the violation of the Act. Ordinarily, a statute of limitation does not confer any right of action, but merely restricts the time within which the right finding its source elsewhere may be asserted. It is not a matter of substantive right. It neither creates the right nor extinguishes it. It affects only the remedy for the enforcement of the right. And unless it affirmatively appears from the face of the complaint that the cause of action is barred by the applicable statute, limitation must be presented by special plea in defense.
But here, section 205(e) creates a new liability, one unknown to the common law and not finding its source elsewhere. It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation, and when the period fixed by its terms has run, the substantive right and the corresponding liability end. Not only is the remedy no longer available, but the right of action itself is extinguished. The commencement of the action within the time is an indispensable condition of the liability. Cf. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Midstate Horticultural Co., Inc. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96.
In a case of this kind brought under the provisions of a statute creating the right of action where none previously existed and qualifies the right of action by requiring that the suit to enforce it be brought within a limited time, it must affirmatively appear from the face of the complaint that the action was commenced within the prescribed time. State ex rel. Bowles v. Olson, Judge, 175 Or. 98, 151 P.2d 723; Hamilton v. Hannibal & St. J. R. Co., 39 Kan. 56, 18 P. 57; Gulledge v. Seaboard Air Line R. Co., 147 N.C. 234, 60 S.E. 1134, 125 Am. St.Rep. 544; Bowery v. Babbit, 99 Fla. 1151, 128 So. 801; Lapsley v. Public Service Corporation of New Jersey, 75 N.J.L. 266, 68 A. 1113; Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 113 A. 202; State for use of Dunnigan v. Cobourn, 171 Md. 23, 187 A. 881, 107 A.L.R. 1045; Sharrow v. Inland Lines, 214 N.Y. 101, 108 N.E. 217, L.R.A.1915E, 1192, Ann.Cas.1916D, 1236; Hartray v. Chicago Rys. Co., 290 Ill. 85, 124 N.E. 849; American R. Co. of Porto Rico v. Coronas, 1 Cir., 230 F. 545, L.R.A. 1916E, 1095; John F.Jelke Co. v. Smietanka, 7 Cir., 86 F.2d 470, certiorari denied, 300 U.S. 669, 57 S.Ct. 511, 81 L.Ed. 876; Bowles v. American Distilling Co., D.C., 62 F.Supp. 20. Insofar as it related to the...
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