White v. Govatos

• Citation: 10 A.2d 524,40 Del. 349
• Court: Delaware Superior Court
• Decision Date: 11 December 1939
• Parties: WILLIAM R. WHITE, Superintendent of Banks of the State of New York, v. JOHN GOVATOS

10 A.2d 524

40 Del. 349

WILLIAM R. WHITE, Superintendent of Banks of the State of New York, v. JOHN GOVATOS

Superior Court of Delaware, New Castle County

December 11, 1939

Superior Court for New Castle County, No. 167, September Term, 1938.

Demurrer to plea.

The plaintiff, as Superintendent of Banks of the State of New York, brought an action on the case against the defendant, as a stockholder of an insolvent bank of New York, to recover the amount of an assessment levied against him by the plaintiff under Sec. 113-a of the New York Banking Law (Consol. Laws c. 2), providing that stockholders of banks and trust companies shall be individually responsible equally and ratably and not one for another, for all contracts, debts and engagements of the bank or trust company to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares; and further providing that an action to enforce such liability must be brought within six years after the cause of action has accrued.

By the Delaware statute, Sec. 5129, Rev. Code 1935, it is provided that no action on the case shall be brought after the expiration of three years from the accruing of the cause of such action, subject to certain exceptions which are not of present concern.

The suit was brought within six years, but after the expiration of three years from the accrual of the cause of action. The defendant, by plea, set up the bar of the Delaware Statute of Limitations. The plaintiff demurred.

The demurrer to the plea overruled.

James R. Morford (of Marvel, Morford and Logan) for plaintiff.

William Prickett for defendant.

LAYTON C. J., RODNEY and TERRY, J. J., sitting.

OPINION

LAYTON, C. J.

At the time the suit was brought, prima facie, the right of action was barred by the general statute of limitations in respect of actions on the case. The plaintiff admits that the time within which an action may be brought to enforce a right ordinarily relates to the remedy and is subject to the law of the forum; but he contends that an exception to the rule is in the case where a liability unknown to the common law created by statute of one state is sought to be enforced in another State, the statute itself prescribing the period of limitation of the action. In such case, it is said, the period of limitation of the foreign statute is so much of the substance of the right conferred that it is operative in any jurisdiction where the plaintiff may sue, notwithstanding that the local law prescribes a shorter period which has expired.

It is generally held that where the time fixed by the statute for bringing suit has elapsed, and suit to enforce the right is brought in another jurisdiction having a period of limitation not expired, the limitation of the statute conferring the right of action is a condition attached to the right; and that the cause of action is extinguished, so that there is nothing to support an action anywhere.

Whether an action is maintainable in a foreign forum when, under the law of the state creating the liability, the right of action subsists, but is barred by the law of the forum, is a question as to which the authorities are in conflict. This question is for decision.

The plaintiff in support of his contention that, in such circumstances, the action is sustainable cites Theroux v Northern Pacific R. Co., (8 Cir.) 64 F. 84; Brunswick Terminal Co. et al. v. National Bank of Baltimore, (4 Cir.) 99 F. 635, 48 L. R. A. 625; Keep v. National Tube Co., (C. C.) 154 F. 121, and Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N.W. 620, 104 Am. St. Rep. 674, 2 Ann. Cas. 150. The Theroux case is the parent and leading case; and as in it the argument in support of the plaintiff's contention is more fully developed than in the other cases named, its reasoning and the authorities upon which the conclusion is rested will be particularly examined.

Suit was brought in a state court of Minnesota to recover damages for the alleged wrongful death of a person in Montana, and was removed to the federal court of Minnesota. By the Montana statute, the period of limitation was three years, while in Minnesota the limitation was two years. The suit having been brought within three, but more than two, years after the death, the defendant, by answer, raised the bar of the Minnesota statute, and had judgment on the pleadings. This judgment was reversed by the Circuit Court of Appeals. First, the court stated the principle laid down in Boyd v. Clark, (C. C.) 8 F. 849, that when a statute of a state or country gives a right of action unknown to the common law and, in conferring the right, limits the time within which the action may be brought, such limitation is operative in any jurisdiction where it is sought to enforce such right of action, citing The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Munos v. Southern Pacif. Co., (5 Cir.) 51 F. 188; Eastwood v. Kennedy, 44 Md. 563; Pittsburg C. & St. L. Railway Co. v. Hine, 25 Ohio St. 629, and O'Shields v. Georgia Pacific Railway Co., 83 Ga. 621, 10 S.E. 268, 6 L. R. A. 152. The Court noticed what it termed an attempt to distinguish the case at bar from Boyd v. Clark on the ground that in that case it was sought to enforce a statutory cause of action in a foreign jurisdiction after it had ceased to be enforceable in the state of its creation, but was of opinion that the obvious difference between the two cases was not sufficient to take the case from the operation of the rule. The Court then proceeded to say that the period of limitation contained in a statute conferring a new right was a constituent part of the liability intended to be created, and of the right intended to be conferred, and was not like an ordinary statute of limitations which merely affects the remedy; that if the courts of another state should refuse to permit the cause of action to be sued upon during a part of the period limited by the foreign law, to that extent they refuse to give effect to the foreign law, and thereby impair the right intended to be created; that the rule of comity requires that the courts of each state shall enforce every civil liability created by the laws of another state, unless the liability is clearly repugnant to some local law, or is opposed to the well established public policy of the state whose courts are asked to enforce it; that it was unable to see how the courts of Minnesota, much less a federal court sitting in Minnesota, could refuse to enforce a liability created by the Montana law as such refusal would subtract from the liability and impair the right intended to be conferred by the law of Montana; and that the two year limitation of the statute of Minnesota was only intended to apply to causes of action originating in that State, so that it could not be said that, by entertaining the suit, a well defined public policy of Minnesota was set at naught.

A word as to the cases cited by the court in support of its determination. In the case of The Harrisburg it was held that an action in admiralty to recover damages for wrongful death under a statute of a state limiting the action to one year could not be maintained five years after the death, the court saying that the time within which suit must be brought operates as a limitation of the liability itself as created and not of the remedy alone. In the Munos case, dependent upon the effect of the repeal of a repealing statute with respect to the period of limitation of an action for wrongful death, the limitation was either one year, or was governed, not by specific limitation of the statute creating the liability but by the general statute of limitations of the state. Under the law of the forum the limitation was one year. In any event the suit had been brought too late. In Eastwood v. Kennedy, under the statute creating the liability, the period of limitation had expired although under the law of the forum, the action was maintainable. It was held that the statute creating the right of action was applicable. In Pittsburgh C. & St. L. Railway Co. v. Hine, no question of conflict of statutes was raised as only statutes of Ohio were involved. In O'Shields v. Georgia Pacific Ry. Co. the statute of the state creating the liability contained no period of limitation. The law of the forum was, of course, applied.

It is manifest that the decisions in these cases were based upon states of fact different from that before the court.

In the Brunswick Terminal Co. case, supra, the suit was brought in a federal court in Maryland to recover the amount of the defendant's liability as a stockholder of a Georgia Bank. The Georgia Statute of Limitations was twenty years, while the Maryland statute applicable to actions of assumpsit or debt was three years. It was held that the Georgia statute applied. In addition to the Theroux Case and the cases there cited, the Court referred to Flash v. Conn, 109 U.S 371, 3 S.Ct. 263, 27 L.Ed. 966; Fourth Nat. Bank v. Francklyn, 120 U.S. 747, 7 S.Ct. 757, 30 L.Ed. 825; and Andrews v. Bacon, (C. C.) 38 F. 777. In Flash v. Conn no question of conflict of statutes of limitation was argued or decided. In Fourth Nat. Bank v. Francklyn the only question at issue was whether the plaintiff was required to allege and prove performance of a condition precedent prescribed by the statute of the state creating the liability. In Andrews v. Bacon, an action was brought in a federal court in Massachusetts to enforce a liability of the defendants as stockholders of a corporation of New Jersey. The defendants contended that the action had been brought too late under the New Jersey statute; and the immediate question was when had the cause of action accrued. Following decisions of the New...