Meath v. Board of Mississippi Levee Comissioners/Opinion of the Court

It is insisted by the plaintiff in error that the special findings of the court are fatally defective, because they do not find the contract by which the suit was brought, or fix the date when the cause of action accrued, and that for this reason the judgment of the circuit court should be reversed. We might dismiss this assignment of error on the ground that there was a general finding for defendants on all the issues of fact, and that no error can be assigned on such a finding. Tioga R. R. v. Blossburg & C. R. R. 20 Wall. 137. But the special findings also fix specifically the date when the plaintiff's right of action accrued, to-wit, on the first day of April, 1871. In considering the sufficiency of the special findings the stipulation between counsel for submitting the cause to the court must be kept in mind. The only questions which, by this agreement, were to be submitted to the court were the issues raised by the replication to the sixth and seventh pleas, being pleas of the statute of limitations. The contract and breaches as set out in the declaration were, for the purpose of this trial, taken for granted. They were confessed by the pleas, and, as a matter of avoidance, the statute of limitations was set up. The court, by its general and special findings, has declared, as a conclusion of fact, that the matters set up in the pleas of the statute of limitations were proven. We think the findings pass upon every issue submitted to the court, and that they are not imperfect or defective.

The limitation law of Mississippi applicable to this case was as follows:

'Art. 6. All actions of debt or covenant founded upon any     bond, obligation or contract, under seal or upon the award of      arbitrators, shall be commenced within seven years next after      the cause of such action accrned, and not after.'

The Revised Code of Mississippi of 1871, failed to provide any limitation for causes of action under seal which arose after October 1, 1871, the date fixed by section 2938, when that Code should take effect, but did contain the following provision:

'Sec. 2172. The several periods of limitation prescribed by     this chapter shall commence from the date when it shall take      effect, but the same shall not apply to any action commenced,      nor to any cases where the right of action or of entry shall      have accrued before that time, but the same shall be subject      to the laws now in force; but this law may be pleaded in any      case where a bar has accrued under the provisions thereof.'

It will appear from these provisions of the statute law that the absence of any limitation of actions upon contracts under seal, between October 1, 1873, and April 19, 1873, can have no effect upon the controversy in this case. When the cause of action in this case arose, as found by the court, to-wit, on April 1, 1871, article 6, p. 400, of the Code of 1857, above quoted, barring actions on sealed instruments in seven years, was in force, and this limitation was expressly continued by the Revised Code of 1871.

The case of Furlong v. State, 58 Miss. 717, relied on by counsel for plaintiff in error, can have no application to the case, for in that suit the cause of action accrued after the Code of 1871 had taken effect. Nothing was decided in that case which has any bearing on this. Therefore, upon the facts specially found, namely, that the cause of action in this case accrued on April 1, 1871, and that this suit was not brought until December 21, 1878, it is apparent that the sixth plea of defendant is sustained, unless this case is saved by the averment in the declaration that the suit was brought within a year after a former suit for the same cause of action had been defeated for matter of form. It is, therefore, to be considered whether, upon the special findings, the plaintiff is entitled to the saving clause of section 2163 of the Code of 1871, which is as follows:

'If, in any action duly commenced within the time allowed,     the writ shall be abated or the action otherwise avoided or      defeated by the death or marriage of any party thereto, or      for any matter of form, *  *  * the plaintiff may commence a      new action for the same cause at any time within one year      after the abatement or other determination of the original      suit.'

The findings show that on March 26, 1877, an action, in all respects similar to this, was brought, on the same contract sued on in this case, by the plaintiff in error against the same defendants, and that, upon the trial of that suit, the court found that the plaintiff did not have a legal title to the claim sued on when the said action was commenced, and judgment was accordingly rendered in favor of the defendant and against the plaintiff. Upon these findings the circuit court was of opinion in this case that the former action was not defeated for any matter of form, and therefore that the plaintiff's cause did not fall within the exception of section 2173 of the Code of 1871, and was barred by the limitation of seven years applicable to contracts under seal. We are of opinion that the facts thus specially found sustain the judgment of the circuit court in this case. The supreme court of Mississippi, in the case of M. & C. R. Co. v. Orr, 43 Miss. 279, has construed the phrase 'for matter of form,' in section 2163, and declared that it 'relates to technical defects in the form of the action or pleadings or proof, or to variances between the one and the other.'

This case it is evident does not fall within this rule. The action brought by plaintiff on March 26, 1877, was defeated because it appeared from the proof that when it was brought the plaintiff had no cause of action. The issue was deliberately and squarely presented by the pleadings in that former suit whether at the time of its commencement the right of action was in the plaintiff. The defendant averred it to be in the plaintiff's assignee in bankruptcy. The plaintiff replied that the contract on which his action was based had been bought at the assignee's sale and assigned to Thomas Boyle, who, before the commencement of the action, to-wit, in January, 1877, had assigned and transferred it to him. On this the defendant took issue, and on that issue the cause was tried. Upon the trial it turned out that the assignment by Boyle to the plaintiff was not made until January 28, 1878, more than 10 months after the action was brought, and the finding and judgment on the issue submitted was against the plaintiff and for the defendant.

Upon this state of facts we think the former suit was defeated, not for any matter of form, but for matter of substance. The plaintiff failed in his action because the legal title to the contract on which he brought his suit was in another, because the evidence did not sustain the issue upon which he had staked his cause. The present case, therefore, does not fall within the exception prescribed by section 2137 of the Code of Mississippi of 1871, and is barred by the limitation of seven years prescribed by the Code of 1851, applicable to contracts under seal.

It follows that the judgment of the circuit court was right, and must be affirmed.