1. The English rule, that the statute of limitations cannot be
set up by demurrer in actions at law does not prevail in the courts
of the United States sitting in Wisconsin.
2. The distinction between actions at law and suits in equity
has been abolished by the code of that state, and the objection
that suit was not brought within the time limited therefor, if the
lapse of time appears in the complaint with out any statement to
rebut its effect, may be made by way of demurrer, if the point is
thereby specially taken. If the plaintiff relies on a subsequent
promise, or on a payment to revive the cause of action, he must set
it up in his original complaint, or ask leave to amend.
3. A provision to the effect that when the defendant is out of
the state, the statute of limitations shall not run against the
plaintiff, if the latter resides in the state, but shall if he
resides out of the state, is not repugnant to the second section of
the fourth article of the Constitution of the United States, which
declares that "the citizens of each state shall be entitled to all
the privileges and immunities of citizens in the several
states."
Page 93 U. S. 73
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.
Page 93 U. S. 74
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The errors assigned in this case are substantially two: first
that the statute of limitations cannot be set up by demurrer,
Page 93 U. S. 75
and secondly, that the statute on which the defense is founded
is unconstitutional in this, that it unjustly discriminates in
favor of the citizens of Wisconsin against the citizens of other
states; for if the plaintiff had been a citizen of Wisconsin,
instead of a citizen of New York, the statute would not have
applied.
As to the first assignment, it is undoubtedly true, that the
statute of limitations cannot, by the English practice, be set up
by demurrer in actions at law, though it may be in certain cases in
suits in equity. And this rule obtains wherever the English
practice prevails. But where the forms of proceeding have been so
much altered as they have been in Wisconsin, further inquiry must
be made. In the first place, by the Revised Statutes of that state,
passed in 1858, in the title "Of proceedings in civil actions," it
is declared that
"the distinction between actions at law and suits in equity, and
the forms of all such actions and suits heretofore existing, are
abolished, and there shall be in this state but one form of action
for the enforcement or protection of private rights and the redress
of private wrongs, which shall be denominated a civil action."
Rev.Stat. 714. Secondly, that "all the forms of pleading
heretofore existing are abolished." The act proceeds to declare
that the first pleading on the part of the plaintiff is the
complaint, which shall contain, amongst other things, "a plain and
concise statement of the facts constituting a cause of action
without unnecessary repetition." Rev.Stat. 721. It provides that
the defendant may demur for certain causes, but that other defenses
must be taken by answer.
Id. Amongst the grounds of
demurrer, one is, "that the complaint does not state facts
sufficient to constitute a cause of action." In another title --
"Of the limitation of actions," -- it is provided that "the
objection that the action was not commenced within the time limited
can only be taken by answer." Rev.Stat. 819. But the Supreme Court
of Wisconsin has decided that when on the face of the complaint
itself it appears that the statutory time has run before the
commencement of the action, the defense may be taken by demurrer,
which, for that purpose, is a sufficient answer.
Howell v.
Howell, 15 Wis. 55. This case has been recognized in later
cases (
see Tarbox v. Supervisors,
Page 93 U. S. 76
34 Wis. 561), and must be regarded as expressing the law of the
state. On the first hearing of the case of
Howell v.
Howell, some importance was attached to the fact that it was
an equity case, in which class of cases a demurrer has been allowed
for setting up the statute of limitations; but, on a rehearing, a
more enlarged view was taken, and a demurrer was regarded as
sufficient in all cases where the lapse of time appears in the
complaint without any statement to rebut its effect, and where the
point is specially taken by the demurrer. If the plaintiff relies
on a subsequent promise, or on a payment, to revive the cause of
action, he must set it up in the original complaint, or ask leave
to amend. Without this precaution, the complaint is defective in
not stating, as required by the statute, facts sufficient to
constitute a cause of action. But, although defective, advantage
cannot be taken of the defect on motion or in any other way than by
answer, which answer, however, as we have seen, may be a
demurrer.
As this is the law of Wisconsin, the Circuit Court of the United
States for the Western District of Wisconsin is bound by it; and as
the decision in the principal case accords therewith, the first
assignment of error cannot be sustained.
The other assignment calls in question the constitutionality of
the statute of limitations itself. The statute having prescribed
the time within which various actions must be brought -- amongst
others, that "an action upon a judgment or decree of any court of
record of any state or territory of the United States, or of any
court of the United States," must be brought within ten years -- it
declares, that
"if, when the cause of action shall accrue against any person,
he shall be out of the state, such action may be commenced within
the terms herein respectively limited, after the return of said
person into this state. But the foregoing provision shall not apply
to any case where, at the time the cause of action shall accrue,
neither the party against or in favor of whom the same shall accrue
are residents of this state."
Rev.Stat. Wis. 822. This statute may be expressed shortly thus:
when the defendant is out of the state, the statute of limitations
shall not run against the plaintiff if the latter resides in the
state, but shall if he resides out of the state. The argument of
the plaintiff is that as the law refuses
Page 93 U. S. 77
to nonresidents of the state an exemption from its provisions,
which is accorded to residents, it is repugnant to that clause of
the Constitution of the United States (Art. IV, Sec. 2) which
declares that "The citizens of each state shall be entitled to all
the privileges and immunities of citizens in the several states."
It is contended that if the resident creditors of the state may sue
their nonresident debtors at any time within six or ten years after
they return to the state, nonresident creditors ought to have the
same privilege, or else an unjust and unconstitutional
discrimination is made against them. This seems, at first view,
somewhat plausible; but we do not regard the argument as a sound
one. There is in fact a valid reason for the discrimination. If the
statute does not run as between nonresident creditors and their
debtors, it might often happen that a right of action would be
extinguished, perhaps for years, in the state where the parties
reside, and yet if the defendant should be found in Wisconsin -- it
may be only in a railroad train -- a suit could be sprung upon him
after the claim had been forgotten. The laws of Wisconsin would
thus be used as a trap to catch the unwary defendant after the laws
which had always governed the case had barred any recovery. This
would be inequitable and unjust.
Beardsley v. Southmayd, 3
M.J.L. (Green) 171.
It is also to be considered that a personal obligation is due at
the domicile of the obligee. It is the duty of the debtor to seek
the creditor, and pay him his debt at the residence of the latter.
Not doing this, he is guilty of laches against the law of the
creditor's domicile as well as his own. But he evades this law by
absenting himself from the jurisdiction. As long as he does this,
the statute of limitations of that jurisdiction ought not to run to
the creditor's prejudice. This cannot be said with regard to the
nonresident creditor. It is not the laws of Wisconsin any more than
those of China which his nonresident debtor contemns by nonpayment
of the debt, and absence from the state; it is the laws of some
other state. Therefore there is no reason why the statute of
limitations of Wisconsin should not run as against the nonresident
creditor -- at least there is not the same reason which exists in
the case of the resident creditor. If the nonresident creditor
wishes to keep his action
Page 93 U. S. 78
alive in other states than his own, he must reduce it to
judgment, and revive that judgment from time to time. Each new
judgment would create a new cause of action and would prevent the
operation of statutes of limitation of other states.
We are of opinion, therefore, that the law in question does not
produce any unconstitutional discrimination, and we prefer putting
the case upon this broad ground rather than to examine into the
rights of the plaintiffs as a foreign corporation doing business in
Wisconsin.
Judgment affirmed.
MR. JUSTICE STRONG concurred in the judgment of the Court, but
dissented from its opinion upon the second assignment of error.
