Michigan Ins Bank v. Eldred

• Decision Date: 13 May 1889
• Citation: 130 U.S. 693,9 S.Ct. 690,32 L.Ed. 1080
• Parties: MICHIGAN INS. BANK v. ELDRED
• Court: U.S. Supreme Court

130 U.S. 693

9 S.Ct. 690

32 L.Ed. 1080

MICHIGAN INS. BANK v. ELDRED.

May 13, 1889.

[Statement of Case from pages 693-695 intentionally omitted] George P. Miller, for plaintiff in error.

Alfred Cary and F. C. Winkler, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

The cause of action accrued May 13, 1862, when the judgment sued on was recovered; and the case turns upon the question whether the action was commenced within 10 years afterwards. As the facts relied on by the plaintiff to prevent the bar of the statute of limitations occurred in May, 1872, the question is not affected by act Cong. June 1, 1872, (chapter 255, § 5,) requiring the practice, pleadings, and forms and modes of proceeding, in actions at law in the circuit and district courts of the United States, to conform, as near as may be, to those of the courts of record of the state. 17 St. 197; Rev. St. § 914. Before the act of 1872, the form of mesne process and the forms and modes of proceeding in actions at law in the courts of the United States in Wisconsin were such as were used in the highest court of original jurisdiction of the state at the time of its admission into the Union, in 1848. Acts May 19, 1828, c. 68, (4 St. 278;) Aug. 6, 1846, c. 89, § 4, and May 29, 1848, c. 50, (9 St. 57, 233;) U. S. v. Council, 6 Wall. 514. But it had been settled by a series of decisions of this court that statutes of limitations, even in personal actions, including actions on judgments, were 'laws of the several states' which, except where the constitution, treaties, or statutes of the United States otherwise required or provided, must, under the judiciary act of September 24, 1789, c. 20, § 34, 'be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' 1 St. 92; Rev. St. § 721; Beatty v. Burnes, 8 Cranch, 98; McCluny v. Silliman, 3 Pet. 270; Bank v. Dalton, 9 How. 522; Bacon v. Howard, 20 How. 22; Amy v. Dubuque, 98 U. S. 470. Statutes of limitation of personal actions are laws affecting remedies only, and not rights, as is clearly shown by the decisions that the only statutes of limitations applicable to such an action are the statutes of the state where the action is brought, and not those of the state where the cause of action arose. McElmoyle v. Cohen, 13 Pet. 312; Townsend v. Jemison, 9 How. 407; Walsh v. Mayer, 111 U. S. 31, 4 Sup. Ct. Rep. 260. It was thus established that suatutes of limitations of the state governed personal actions in the courts of the United States. Otherwise, in the absence of congressional legislation, there would be no limitation of the time of bringing any personal action in a court of the United States. The statute of Wisconsin upon this subject in force in May, 1872, was chapter 138 of the Revised Statutes of 1858, entitled 'Of the Limitation of Actions,' the material provisions of which are as follows: 'Section 1. Civil actions can only be commenced within the periods prescribed in this chapter, except when, in special cases, a different limitation is prescribed by statute.' 'Sec. 14. The periods prescribed in section one of this chapter for the commencement of actions, other than for the recovery of real property, shall be as follows:' 'Sec. 16. Within ten years: (1) An action upon a judgment or decree of any court of record of any state or territory within the United States, or of any court of the United States.'

'Sec. 27. An action shall be deemed commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor or otherwise united in interest with him. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this chapter, where the summons is delivered, with the intent that it shall be actually served, to the sheriff or other proper officer of the county in which the defendants, or one of them, usually or last resided.' 'But such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.'

The first sentence of the last section, declaring that the service of the summons shall be deemed the commencement of the action, is embodied in the statute of limitations, and is as clearly a part of it as the second sentence of the section, declaring that an attempt to commence an action by delivery of the summons to an officer with intent that it shall be actually served shall be deemed equivalent to a commencement thereof. The words 'within the meaning of this chapter' were fitly inserted in the second sentence, in order to make clear the intent of the...