Sachs v. Ohio Nat. Life Ins. Co.

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Eiseman & Lewis and Sidney W. Mandel, all of Chicago, Ill., for plaintiffs
• Citation: Sachs v. Ohio Nat. Life Ins. Co., 44 F.Supp. 552 (N.D. Ill. 1942)
• Decision Date: 27 April 1942
• Docket Number: No. 3767.,3767.
• Parties: SACHS et al. v. OHIO NAT. LIFE INS. CO.

44 F. Supp. 552

SACHS et al. v. OHIO NAT. LIFE INS. CO.

No. 3767.

District Court, N. D. Illinois, E. D.

April 27, 1942.

Eiseman & Lewis and Sidney W. Mandel, all of Chicago, Ill., for plaintiffs.

Seyfarth & Atwood, of Chicago, Ill., for defendant.

WOODWARD, District Judge.

The question presented by defendant's motion for a summary judgment is whether or not plaintiffs' suit is barred by the statute of limitations.

From the pleadings and the affidavits the following facts appear:

On July 6, 1931, the plaintiffs, as creditors of the Roseland State Bank, an Illinois banking corporation, filed suit in the Circuit Court of Cook County, Illinois, to enforce the superadded liability of stockholders. On June 30, 1934 the Circuit Court of Cook County entered a final decree, without reservation of jurisdiction to bring in new or additional parties. The defendant in this suit—Ohio National Life Insurance Company—was not a party to the original suit and was not bound by the decree of June 30, 1934. Thereafter and on July 3, 1935 the plaintiffs filed, in the Circuit Court of Cook County, an amended and supplemental complaint in which the defendant in this suit was first made a party defendant in the state suit. The defendant in this suit then removed the cause to this Court. After removal to this Court, the defendant—Ohio National Life Insurance Company—which is also the defendant in this suit, filed an amendment to its answer and averred that upon the entry of the final decree in the State Court, the Court lost all jurisdiction of the subject matter of the action and had no power to proceed further, there being no jurisdiction reserved to make additional parties defendant. The cause came on for trial in this Court on the issue of the jurisdiction of the court as to the subject matter. On November 14, 1941, this Court dismissed the cause for want of power or jurisdiction over the subject matter.

This judgment was in full force and effect on January 3, 1942 when the present suit was commenced.

The complaint in the present suit, after reviewing the history of the prior litigation, avers: "Plaintiffs here allege and make a part of this, their complaint, all of the matters and things alleged, set forth and contained" in the amended and supplemental complaint filed in the State Court on July 3, 1935. A copy of such Amended and Supplemental complaint is attached to and made a part of the complaint. The defendant's answer, among other things, invokes the Illinois Statute of Limitations.

Under the pleadings the cause of action, if any, accrued on July 6, 1931. This suit, as stated, was filed on January 3, 1942, more than ten years after the cause of action accrued.

The state statute of limitations governs actions in the federal courts.

The defendant invokes both the five and ten year statutes of limitations, as follows:

"Actions on unwritten contracts, expressed or implied * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued." (Chap. 83, Sec. 16, Ill.Rev.Statutes of 1939.)

"Actions on * * * written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued; * * *." (Chap. 83, Sec. 17, Ill.Rev. Statutes of 1939.)

In reply, plaintiffs invoke Section 24a of the Illinois Statute of Limitations reading as follows: "In any of the actions specified in any of the sections of this act * * * if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff * * * may commence a new action within one year after such judgment * * * given against the plaintiff, and not after." Par. 24a, Ch. 83, Ill.Rev.St., State Bar Association Edition.

The ten year statute of limitations barred the bringing of this suit during the pendency of the prior action. The question is, Is Section 24a applicable? Stated in another way, Was the dismissal of the prior suit for want of jurisdiction of the subject matter a non-suit within the meaning of Section 24a?

The applicability and construction of the term "non-suit", as used in Section 24a, must be determined by reference to the decisions of the courts of Illinois— Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

The term "non-suit", as used in Section 24a, has been construed and applied by the Illinois courts. One of the earliest expositions of the term "non-suit" is found in the case of Herring v. Poritz, 6 Ill.App. 208, decided in 1880. The Court held that the term "non-suit", as used in the statute, was a technical term and must be given its common-law meaning. The Court also held that the term "non-suit" applied only to what was known as an involuntary non-suit at common law and stated: "An involuntary nonsuit takes place when the plaintiff, on being called...