Reich v. Van Dyke, 7135.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BIGGS, MARIS, and CLARK, Circuit
• Citation: 107 F.2d 682
• Parties: REICH v. VAN DYKE
• Docket Number: No. 7135.,7135.
• Decision Date: 13 November 1939

107 F.2d 682 (1939)

REICH
v.
VAN DYKE

No. 7135.

Circuit Court of Appeals, Third Circuit.

November 13, 1939.

Irving L. Epstein and Henry S. Sahm, both of Scranton, for appellant.

Harry Needle, Joseph S. Needle, and Ralph P. Needle, all of Scranton, Pa., for appellee.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Statutes of limitation generally suffer from that simplification which leads to complexity. A writer in the Pennsylvania Law Review puts that feeling into these words:

"* * * The statute of limitations, while theoretically definite and clear in its language, provides numerous difficulties in its application to the most ordinary commercial problems. * * * As a fundamental principle, it may be said that the statute of limitations does not begin to run until a cause of action has accrued. But just when the cause of action has accrued is usually the subject of dispute, for upon the answer to this question is suspended practically every case concerning the statute of limitations. * * *" 76 University of Pennsylvania Law Review 87, 87-88.

The one here applicable, McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L. Ed. 702, 3 Ann.Cas. 500, that of Pennsylvania, is no exception. In fact it carries its simplification to an unusual length. It was adopted in 1713 and is in the archaic language of an even earlier statute, that of 21 Jac. 1c. 16, 1623, and reads:

"actions of debt * * * shall be commenced * * * within six years next after the cause of such actions". 12 Purdon's Pa.Stat.Ann. § 31.

107 F.2d 683

The Pennsylvania courts have been constrained to expand this extreme simplicity and give the word "cause" the same meaning that is explicit in the analogous enactments of most other states, cf. for instance, 1 Revised Statutes of New Jersey (1937) 2:24-1, N.J.S.A. 2:24-1. So they call it the point of time when the action "accrues" or "arises", i. e., when "there is an existing right to sue forthwith", N. Y. & Pa. R. Co. v. N. Y. C. R. Co., 300 Pa. 242, 246, 150 A. 480; accord, 1 Wood, Limitation of Actions, sec. 122(a) 684, 685; 30 Harvard Law Review 767 (note). California, by way of contrast, avoids complexity by its more detailed classification and has a statute (sec. 359 of its Code of Civil Procedure) which prescribes for actions in "statutory liability" and dates the running from "three years after the * * * liability was created", Johnson v. Greene, 9 Cir., 88 F.2d 683; Coulter Dry Goods Co. v. Westerworth, 171 Cal. 500, 153 P. 939.

The same tendency to oversimplify may be thought to appear in the decisions applying this or a similarly worded statute to the exact facts presented by the case at bar. The only reported Federal cases are those of the learned District Court below, Van Dyke v. Reich, 27 F.Supp. 436, and of the United States Court of Appeals for the District of Columbia, Strasburger v. Schram, 68 App.D.C. 87, 93 F.2d 246. Besides these, there seems to be only one other decision, the case of White v. Liskovsky, 3 A.2d 123, 17 N.J.Misc. 8, in the Supreme Court (Circuit Judge) of New Jersey, also reported in note 3 under Limitation of Actions, 2 New Jersey Statutes Annotated 2:24-1, p. 7. For some reason, appellee does not cite this case, but cites a later Supreme Court (Circuit Judge) of New Jersey case, Howell v. Fogg, 7 A.2d 282, 17 N.J.Misc. 200, wherein the holding is dictum.

The circumstances presented are those which have been all too common in the past decade. The laws of the United States, 12 U.S.C.A. § 63 and § 64, enacted in an economically similar decade (1864) provide for the double liability of stockholders in national banks. This attempt to ensure good management has now been replaced by government insurance, 12 U.S. C.A. § 264. On December 15, 1932, the Comptroller of the Currency proceeded under the provisions of such law and notified the defendant-appellant of his obligation to pay "on or before January 23, 1933" the amount of the par value of his 5 shares of stock in the Liberty National Bank (of Dickson City, Pennsylvania), namely, the sum of $500. The tolerance of the Comptroller, acting through his arm, the bank's receiver, extended further than merely the giving of a grace period for original compliance. He permitted those who showed a willing spirit to pay in quarterly instalments up to and until April 23, 1933, Record, p. 7. To requite this kindness and in exploitation of the receiver's failure to sue until January 16, 1939, defendant-appellant pleaded the statute of limitations.

We feel a faint stirring of surprise at two things about all this....