Stewart v. Kahn
78 U.S. 493 (1870)

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U.S. Supreme Court

Stewart v. Kahn, 78 U.S. 11 Wall. 493 493 (1870)

Stewart v. Kahn

78 U.S. (11 Wall.) 493

Syllabus

1. In writs of error under the 25th section of the Judiciary Act of 1789, which gives jurisdiction to this Court to review no error but such as appears on the face of the record &c. -- where the writ is to the Supreme Court of Louisiana, the code of which state enacts that

"When the defendant alleges on his part new facts, these shall be considered as denied by the plaintiff; therefore neither replication nor rejoinder shall be allowed,"

a question was held to appear sufficiently on the face of the record when the petition for review in the supreme court of the state set out that the question was raised in the court below and decided against, and when the supreme court, on the question being thus before it, decided the case in the same way.

2. The Act of June 11, 1864, "in relation to the limitation of actions in certain cases," is not prospective alone in its operation. Under it, the time which elapsed while a plaintiff could not prosecute his suit by reason of the rebellion, whether before or after the passage of the act, is to be deducted from the operation of any state statute of limitations.

3. The act applies to cases in the courts of the states as well as to those in the federal courts.

4. Thus construed, it is constitutional.

On the 10th August, 1860, Bloom, Kahn & Co., of which firm one Levy was a member, all parties being resident traders in New Orleans, gave their promissory note to A. T. Stewart & Co., resident traders of New York, payable March 13, 1861. Payment was refused on demand at maturity. Very soon after this -- that is to say, in April, 1861 -- the late rebellion broke out, and from the 15th of that month, when its existence was announced by proclamation from President Lincoln, until sometime after, May 4, 1862, at which date the government troops took possession of New Orleans, [Footnote 1] the ordinary course of judicial proceedings was so interrupted by resistance to the laws of the United States that none of the defendants could have been served with process if suit had been brought on the note against them.

On the 11th of June, 1864, Congress passed this act, entitled

Page 78 U. S. 494

"An act in relation to the limitation of actions in certain cases:"

"That whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person who by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process for the commencement of such action or arrest of such person:"

"Or whenever, after such action, civil or criminal, shall have accrued, such person cannot by reason of such resistance of the laws, or such interruption of judicial proceedings, be served with process for the commencement of the action:"

"The time during which such person shall be beyond the reach of judicial process shall not be deemed or taken as any part of the time limited by law for the commencement of such action."

On the 16th April, 1866, the federal courts being now reestablished in New Orleans, Stewart & Co. sued Bloom, Kahn & Co. on the note. These set up what is called in Louisiana "the prescription of five years," equivalent to that which is elsewhere known as a statute of limitation, barring an action after five years. No replication to this plea was put in. The Code of Practice in Louisiana bars replications generally. This code enacts that

"When the defendant in his answer alleges on his part new facts, these shall be considered as denied by the plaintiff; therefore neither replication nor rejoinder shall be admitted."

And by the settled practice of the state, what was embraced in the defendants' answer was open to every "objection of law and fact the same as if specially pleaded." The plaintiffs therefore were to be considered as denying the validity of the state statute of prescription which the defendants had set up in their plea and as declaring that in virtue of the act of Congress above quoted, it was suspended by the rebellion.

The court in which the suit was brought gave judgment

Page 78 U. S. 495

for the defendants. The plaintiffs then filed a petition in the Supreme Court of Louisiana for a rehearing of the case, and, among other things represented in the petition, that in the court below

"They mainly relied upon the act of Congress entitled 'An act in relation to the limitation of actions in certain cases,' approved June 11, 1864, as a complete answer to the plea of prescription set up by the defendants."

The petition for rehearing also declared that the plaintiffs had filed a written brief in the said district court, which the rules of that court required them to file, setting out the said act of 1864. This petition was inserted in the record.

The Supreme Court of Louisiana affirmed the judgment in the court below, in these words:

"This is an action upon a promissory note. The defendants pleaded the prescription of five years. The note fell due on the 13th of March, 1861, and the citations were served on the 18th day of April, 1866. More than five years having elapsed after the maturity of the note before the citations were served on the defendants, the plea of prescription must be sustained. It is therefore ordered, adjudged, and decreed, that the judgment of the lower court be affirmed, and that the appellant pay the costs of the appeal."

The plaintiffs now brought the case here.

Prior to the 5th of February, 1867, there was but one enactment on the subject of bringing judgments from the supreme courts of states to this Court, the well known 25th section of the Judiciary Act of 1789. [Footnote 2] On the day first above mentioned, however, Congress passed another act on the subject, [Footnote 3] following in most respects the language of the old act, though changing it in some places and leaving out one whole clause in the old act. The important parts of the two acts are here set lines, words in the act of 1789 omitted in the act of 1867 being enclosed in

Page 78 U. S. 496

brackets, and words variant in the two enactments being put in italics:

"Judiciary Act of 1789"

"SEC. 25. And be it further enacted that a final judgment or decree in any suit in the highest court [of law or equity] of a state in which a decision in the suit could be had where is drawn in question the validity of a treaty or statute of or an authority exercised under the United States and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such [clause of the said] Constitution, treaty, statute, or commission, may be reexamined and reversed, or affirmed in the Supreme Court of the United States upon a writ of error, . . . in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court. [But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record and immediately respects the beforementioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.]"

"Judiciary Act of 1867"

"SEC. 2. And be it further enacted that a final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of or an authority exercised under any state on the ground of their being repugnant to the Constitution, treaties, or laws of the United States and the decision is in favor of such their validity, or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission [or authority], may be reexamined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error . . . in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States."

The case being now in this Court, two questions were made:

1. Of jurisdiction in this Court.

2. Assuming jurisdiction to exist, the correctness of the judgment below.

Page 78 U. S. 500

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