Chemung Canal Bank v. Lowery

ERROR to the Circuit Court of the United States for the Western District of Wisconsin.

It appears by the complaint in this cause, that the plaintiff recovered a judgment against the defendants in New York, on the fourteenth day of June, 1862, for upwards of $15,000,-the plaintiff being a corporation of New York, and the defendants all having appeared in the suit. The present suit was brought on that judgment; but only one of the defendants was served with process, the others residing out of the jurisdiction of the court. The complaint states that the defendant, who was served with process, was when served, and still is, a citizen and resident of Wisconsin, but that he did not come into the State, and was not a resident thereof, until the year 1864. This action was commenced on the 24th of January, 1873,-a little more than ten years after the recovery of the judgment in New York, and less than ten years after the defendant, who was served, came into the State. The plaintiff demands judgment against the defendant now before the court.

The defendant filed the following demurrer to the complaint, to wit:--

'The defendant, Goodwin Lowery, demurs to the plaintiff's complaint in this action, for that it appears upon the face of the same that the plaintiff's claim or demand is barred by the Statute of Limitations, in that it appears that the supposed cause or causes of action did not, nor did either of them, accrue to the said plaintiff at any time within six years, nor at any time within ten years next before the commencement of this action, and for that the said complaint does not state facts sufficient to constitute a cause of action.'

Upon this demurrer the court gave judgment for the defendant. To reverse this judgment, the present writ of error was brought.

Argued by Mr. William P. Lynde for the plaintiff in error.

Under the statute of Wisconsin, objection that the action was not commenced within the term limited can only be taken by answer. Rev. Stat. Wis., c. 138, sect. 1. Where the common-law pleadings prevail, a party seeking to avail himself of the Statute of Limitations must plead it specially. Bricket v. Davis, 21 Pick. 404; Gould v. Johnson, 2 Ld. Raym. 838; Puckel v. Moore, 3 Vent. 191; Jackson v. Varick, 2 Wend. 294; Robins v. Harvey, 5 Conn. 335.

As the plaintiff might have been within some of the various exceptions mentioned by statute, the demurrer should have been overruled. Angell on Lim., c. 26, sect. 1; State v. Finch, Cro. Car. 381; Hawkins v. Billhead, id. 404; Hyde v. Van Valkenburgh, 1 Daly (N. Y.), 416.

The statute on which the defence is founded denies to citizens of other States the rights and immunities which it accords to her own, and is, therefore, in violation of the Constitution of the United States. Corfield v. Coryell, 4 Wash. C. C. 381; Ward v. Maryland, 12 Wall. 430; Slaughter-house Cases, 16 id. 117; Cooley on Const. Lim. 16; id. 397.

Mr. S. U. Pinney, contra.

The distinction between actions at law and suits in equity has been abolished in Wisconsin. Rev. Stat. Wis., c. 122, sect. 8. Therefore, where the defence of the Statute of Limitations is apparent on the fact of the complaint, the objection that the demand is barred by lapse of time may be taken by demurrer. Howell v. Howell, 15 Wis. 55.

Such being the practice in the State courts, those of the United States sitting in that State are bound to adopt it. 17 Stat. 197.

The plaintiff in error is not a citizen within the meaning of that word, but a corporation of another State. It therefore has no status or standing in the courts of Wisconsin to enable it to invoke the protection of the Constitution of the United States. ''Warren Manuf. Co. v. AEtna Insurance Co., 2 Paine, C. C. 516; Paul v. Virginia'', 8 Wall. 168; Bank of Augusta v. Earl, 13 Pet. 586.

It is submitted that the statute of which plaintiff in error complains does not abridge or deny the privileges or immunities of citizens of other States within the meaning of the Constitution, but is a mere regulation of the remedies which the State, by virtue of its sovereignty and according to its own notions of policy, may constitutionally adopt.

MR. JUSTICE BRADLEY delivered the opinion of the court.