McCormick v. Eliot

• Decision Date: 10 October 1890
• Citation: 43 F. 469
• Parties: McCORMICK v. ELIOT.
• Court: U.S. District Court — District of Massachusetts

43 F. 469

McCORMICK v. ELIOT.

United States Circuit Court, D. Massachusetts.

October 10, 1890

This was an action of contract, brought May 16, 1887, by McCormick, a citizen of Illinois, against Eliot, a citizen of Massachusetts, to recover the balance of an account stated August 8, 1863, by Eliot and one Fiske with McCormick, amounting to the sum of $2,058.16 and interest. The defendant pleaded (1) a general denial; (2) accord and satisfaction; (3) that the cause of action did not accrue within six years; (4) that, by the statute of limitations of Illinois, the plaintiff's cause of action was barred by the defendant's continuous residence in Illinois for more than 10 years after it accrued, to wit from April, 1867, to August, 1877. Rev. St. Ill. c. 83, Sec 15. The plaintiff filed a replication, alleging that within six years after his cause of action accrued, to wit, on October 21, 1863, he duly commenced an action against the defendant for the same cause in the superior court of Massachusetts for the county of Suffolk, and recovered a judgment therein on June 24, 1880, which was afterwards, within one year before bringing this action, to wit, on May 6, 1887, reversed by the supreme judicial court of Massachusetts on a writ of error sued out by the defendant; and, except as aforesaid, denying all the allegations of the answer. At the trial by jury in this court before the district judge, it appeared that the account stated was the result of a settlement by Eliot and Fiske with McCormick for goods intrusted by him to them to sell on commission, rendering accounts monthly; and a person who was in the plaintiff's employment from 1863 to the present time testified that the balance of account sued for had never been paid. The plaintiff, against the defendant's objection, was permitted to put in evidence duly exemplified copies of the judgments of the superior court and of the supreme judicial court of Massachusetts, mentioned in the replication. By the record of the superior court, it appeared that the action in that court was commenced by McCormick against Fiske and Eliot, October 21, 1863, by writ of summons and attachment; that on the same day an officer, as appeared by his return, duly attached all the defendant's real estate in the county, and that the defendants not being inhabitants of this state, nor having any residence therein, and neither they nor any agent, tenant, or attorney of theirs, known to the officer as such, being found in his precinct, he could make no further service of the writ; that the action was continued until April term, 1864, when the court ordered notice to the defendants by publication in a newspaper, and the action was continued to July term, 1864, when it was proved by affidavit that the order of notice had been complied with, and at the end of 10 days thereafter, no appearance having been entered for the defendants, a default was entered against them, and the action was continued for judgment from term to term until April term, 1880, when, on June 24th, the plaintiff discontinued against Fiske, and took judgment against Eliot; that on April 30, 1887, a rescript was sent down by the supreme judicial court on writ of error reversing that judgment. It also appeared that at the time of the attachment Eliot had real estate within the county; and that no execution was taken out on the judgment of the superior court; but that the plaintiff, on November 2, 1881, brought an action in that court on the judgment, which the supreme judicial court held to be maintainable in 138 Mass. 379. By the record of the supreme judicial court, it appeared that the judgment of the superior court was reversed, and the action ordered to be dismissed for want of jurisdiction, for the reasons stated in the opinion reported in 144 Mass. 10, 10 N.E. 705. It also appeared that the defendant was born in Boston in 1828, and lived there in his father's house, which was his usual place of abode, until 1856, when he went to Iowa, and there lived until April, 1867, when he removed to Chicago, and afterwards constantly resided there until August, 1877, when he moved back to Massachusetts, and lived there ever since; and that the plaintiff lived in Chicago ever since 1852. The defendant, without offering any evidence, thereupon requested the court to rule and instruct the jury as follows:

'(1) If the jury find that Eliot had lived in Massachusetts six years before suit was brought, and after date of settlement, the statute of limitations is a bar to recovery by plaintiff. (2) If the jury find that Eliot lived in Illinois, the state where plaintiff lived, for ten years at any time after settlement made and before this action was brought, then this action was barred by the statute of limitations of Illinois, and is likewise barred by the statute of limitations of Massachusetts. (3) The suit brought in Massachusetts against Eliot in 1863 was not 'duly commenced,' because it does not appear that he had no last and usual place of abode here, known to the officer, and because no service was made upon him personally, and therefore the reversal upon error of the judgment recovered in that suit did not open the bar of the statute of limitations. The Massachusetts court had no jurisdiction of the action brought against Eliot by McCormick, in 1863, and the proceedings in that action were null and void. No valid judgment could have been entered therein. The pretended judgment entered therein was a nullity, and could have been avoided by plea without reversal. Its reversal on error was such only if form. In fact, it was merely a declaration of its nullity, and did not stop the running of the statute of limitations, nor reopen it after it had run. * * * (5) The statute of limitations of Illinois was not interrupted by the pendency of the proceedings in Massachusetts, nor could an action have been maintained in Illinois at any time after the statutory period had run, whether before or after the Massachusetts judgment was declared void. (6) The statute of limitations of Illinois, the plaintiff's domicile, having barred his claim, it is lost altogether, and cannot be sued in the courts of the United States, even in a circuit where the local law refuses to recognize the bar of the statute of another state. (7) The thirteenth section of the Massachusetts statute has no application to cases where the bar of the statute of the plaintiff's domicile has fallen pending proceedings here, which could only have effect as proceedings in rem. Such cases are brought within the bar of the Massachusetts statute by the act of 1880, incorporated in the eleventh section, and are not withdrawn from it by the thirteenth section. (8) The expiration of more than twenty years since the cause of action accrued creates a legal presumption of payment, which can only be rebutted by very conclusive evidence, and no evidence capable of rebutting this presumption has been offered in this case. (9

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