Paquin v. Milliken

• Decision Date: 29 June 1901
• Parties: PAQUIN et al. v. MILLIKEN.
• Court: Missouri Supreme Court

63 S.W. 1092

163 Mo. 79

PAQUIN et al. v. MILLIKEN.

Supreme Court of Missouri, Division No. 2.

June 29, 1901.

Separate opinion. For opinion of the court, see 63 S. W. 417.

SHERWOOD, P. J.

Speaking for myself alone, I desire to call attention to the fact that the doctrine announced in Whelan v. Reilly, 61 Mo. 565, respecting the rule that "he who seeks equity must do equity," was overruled by the force of numbers in Kline v. Vogel, 90 Mo., loc. cit. 250, 1 S. W. 733, 2 S. W. 408. That doctrine, however, has survived that attack, as shown by the foregoing opinion, which shows, also, that the doctrine announced in Whelan v. Reilly has received the sanction of those, both in England and in this country, whose opinions are really deemed worthy of respect. Of course, it is easy enough to brush aside any opinion, with votes enough to do it with. It is also proper to call attention to the fact that in the Kline-Vogel Case, 90 Mo., loc. cit. 250, 251, 1 S. W. 733, 2 S. W. 408, it is said in the majority opinion: "Again, this court has decided on several occasions that our present statute of limitations applies to equitable as well as legal causes of action. Henschall v. Schmidtz, 50 Mo. 455; Rogers v. Brown, 61 Mo. 188. Those rulings, in my judgment, are correct, and ought not to be disturbed. I do not, therefore, agree to the proposition that, when the relief sought is based upon a right purely equitable, that the court acts outside of and independent of the statute of limitations; for I understand the proposition to state, and to be intended to include, the doctrine that the court in that class of actions may even lengthen the statutory period within which such an action may be brought." But in the subsequent case of Kroenung v. Goehri, 112 Mo., loc. cit. 648, 20 S. W. 663, it was said by the writer of the majority opinion just mentioned: "A court of equity will refuse relief where the party has slept upon his rights for an unreasonable length of time, and this, too, without regard to the statute of limitations. In other words, a court of equity will often refuse relief because of delay in bringing the suit though the period of delay is less than that prescribed by the statute of limitations." But no hint was given of a contrary ruling having been made in the Kline-Vogel Case. These two deliverances do not appear to jibe very well together. See section 302, 1 Elliott, Gen. Prac.