Panhandle Eastern Pipe Line Co. v. Parish
| Decision Date | 10 May 1948 |
| Docket Number | No. 3587.,3587. |
| Citation | 168 F.2d 238 |
| Parties | PANHANDLE EASTERN PIPE LINE CO. v. PARISH et ux. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark H. Adams, of Wichita, Kan. (Charles E. Jones, of Wichita, Kan., Wm. I. Robinson, of Washington, D. C., Arthur G. Logan, of Wilmington, Del., and C. R. Kirkbride of Kansas City, Mo., on the brief), for appellant.
Dupuy G. Warrick of Kansas City, Mo. (Charles F. Lamkin, Jr., of Kansas City, Mo., W. F. Lilleston, of Wichita, Kan., Warrick, Brewer & Lamkin, of Kansas City, Mo., and Carey, Lilleston, Spradling & Gott of Wichita, Kan., were with him on the brief) for Appellees.
Before PHILLIPS, BRATTON and MURRAH, Circuit Judges.
Panhandle Eastern Pipe Line Company instituted this action in the district court of Grant County, Kansas, against Frank P. Parish and Theodore F. Parish, husband and wife. The cause of action pleaded in the petition was that plaintiff was a corporation organized under the laws of Delaware and authorized to do business in Kansas; that the defendants were residents and citizens of Maryland; that in 1930, the defendant Frank P. Parish was president of plaintiff corporation and the holder of a majority of its outstanding stock; that during that year he fraudulently misappropriated and converted to his own use and benefit property or funds of the plaintiff in the aggregate amount of $281,896.35; that such misappropriation and conversion took place in New York; that plaintiff did not know or have occasion to know of the fraud until 1935; that at the time the fraud occurred, the defendants resided in New York; that they later resided in Michigan; that the action did not become barred by limitation in either state; that at all times after the cause of action arose, the defendants were nonresidents of Kansas; that in 1937, the defendant Frank P. Parish acquired certain oil and gas leases in Kansas; that in 1939, he executed a purported assignment of the leases to the defendant Theodore F. Parish; and that the assignment was executed in fraud of the creditors of the defendants and did not pass title to the defendant Theodore F. Parish. The prayer was that a writ of attachment issue for levy upon such oil and gas leases and any other property owned by the defendants; that plaintiff have judgment against the defendants for $281,896.35, with interest; that the attachment lien be enforced, the property sold, and the amount due plaintiff paid out of the proceeds of the sale; and that the balance if any returned into court to abide the further order of the court. The oil and gas leases were attached. Process was served by publication and personal service was had upon the defendants in Maryland. The cause was seasonably removed to the United States Court. The defendants interposed separate motions to dismiss the action on the ground that the petition failed to state a claim upon which relief could be granted. The motions were sustained; the action was dismissed; and plaintiff appealed. For convenience, reference will be made to the parties as they appeared in the trial court.
Federal Rules of Civil Procedure, rule 9(f), 28 U.S.C.A. following section 723c, provides that for the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like other averments of material matter. Under that rule, where it affirmatively appears from the face of a complaint that the action pleaded is barred by the statute of limitations, the defense can be raised by motion to dismiss. Gossard v. Gossard, 10 Cir., 149 F.2d 111. The motions to dismiss the action did not specify or particularize that it affirmatively appeared from the face of the petition that the action was barred by limitation. Instead, they were couched in the general language that the petition failed to state a claim upon which relief could be granted. But the parties treat the motions as appropriately presenting the defense that the petition affirmatively disclosed that the cause of action was barred by limitation, and we shall treat them in the same manner.
The pertinent part of section 60-306, General Statutes of Kansas 1935, provides that a civil action, other than for the recovery of land, seeking relief on the ground of fraud shall be brought within two years after the cause of action shall have accrued; and that the cause shall not be deemed to have accrued until after discovery of the fraud. And section 60-309 provides that if a person be out of the state when a cause of action accrues against him, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and that if he departs from the state or absconds or conceals himself after the cause of action accrues, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. In certain cases, the Supreme Court of Kansas held that section 60-309 applies only where the defendant resided in Kansas when the cause of action accrued but was out of the state or had absconded or concealed himself; and that it has no application where the defendant did not reside in the state at the time of the accrual of the cause of action. Bruner v. Martin, 76 Kan. 862, 93 P. 165, 14 L.R.A.,N.S., 775, 123 Am.St.Rep. 172, 14 Ann.Cas. 39; Stock Exchange Bank of Wykes, 88 Kan. 750, 129 P. 1131. In other cases, the court applied the statute with controlling effect where the defendant was a nonresident of the state at the time the cause of action accrued. Gibson v. Simmons, 77 Kan. 461, 94 P. 1013; Kirk v. Andrew, 78 Kan. 612, 97 P. 797; Hendricks v. Brooks, 80 Kan. 1, 101 P. 622, 133 Am.St.Rep. 186. Be that seeming conflict as it may, the case of Herthel v. Barth, 148 Kan. 308, 81 P.2d 19, 119 A.L.R. 326, was an action to impress a constructive trust upon land in Kansas. The defendants were nonresidents of Kansas. They pleaded the statute of limitations, and the plea was sustained. The court held in effect that the action was one in rem; that the suit to affect the...
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