.. !Ii'A:LEER:V.OLAY COUNTY., :
701
McALEER (Olreuit OO'U'l't, No
al.
'V.
CLAy
COUNTY.
D.rotea,
w:
D. May 28,1889.)
The court is not ,authorized to look beyond the judgment, and, asceJ:tain whether it was based upon a contract. ' ' " , "
8.
SAME.:-..OOUNTIES-'AUTHORITY OF ATTORNEY. "
Sectron 2589 requires the admission to be signed by the party 'to b!3 charged therewith. Held, that an answer to an information for mandamus to compel a county to pay a jUdgment, signed only by the county's attorney, cannot be treated Il.B a writing signed by the county within the meaning of that section, as the attorney had no general authority to sign the answer for that purl'lOse. ADMINISTllATORS-PLEADING.
4.
EXECUTORS AND
The statutes of Iowa require foreign administrators to take out auxiliary letters in that state before suing in its courts. Held, that an averment in :an amended petition, in an action by foreign administrators in the circuit court for the district, of Iowa. that since the filing of theorigiual petition auxiliary letters have been granted, cannot be stricken out on motion as irrelevant. The question as to whether the action as then pending cO,nld be sustained il a matter in and, if not properly raised, would be waived.
At Law. On motion to strike out parts of amended petition. E. C. for plilintiffs. A. C. Parker and J. F. Duncmnbe, for defendant. SHffiAS, J. On the 21st of October, 1864, ajudgmentwa$ rendered in the United States circuit court for the district of Iowa in favor of Michael McAleer' against the county of Clay, Iowa, the cause of action being county warrants issued by the defendant. Thejudgment plaintiff having died in the state of New York, of which he was a resident, the present plaintiffs were in 1881 appointed administrators of his estate by the surrogate's court for the county of New York in that state. On the 13th of November, 1888, the present action was brought, torecover the balance alleged to be due and unpaid upon the judgment rendered October 21, 1864. A demurrer to the petition being filed, setting up that upon the fnce of the petition it appeared that the cause of action was barred by the state statute of limitations, the pluintiffs filed an amended and substituted petition setting up the fact that in May, 1881, th'e tiffs had filed an information for amandamU8 against the county and its officials, for the purpose of enforcing the levy and collection of a tax for the payment of suchjudgmentj the information and the answer thereto heing set out in full, the purpose thereof being to show that in said proceedings the defendant had admitted the existence of the jUdgment; and thereby defeated the running of the statute oflimitations. The defend-
708
FEDERAL REPORTER,
vol. 38.
ant now moves to strike out of the amended petition such portions thereof as set forth the proceedings in m<:tndamtL8 on the grou{ld of immateriality. Thus is presented the question whether the matters thus pleaded are of avail in meeting the question Qftbe bar of the statute. By section 2529 of the Code of Iowa it is provided that"The following actions may be brought within the times herein limited. respectively, after their causes accrue: * * * (4) Those founded on unwritten contracts * * * within five years; (5) those founded on written contracts * * * within ten years; (6) those founded on a judgment of a court of record, whether of this or of any other of the United States, or of the federal courts of the United States, within twenty years."
Section 2539 provides that"Causes of action founded on contract are revived by an admission that the debt is unpaid. as well as by a new promise to pay the same. But such admission or new must be in writing, signed by the party to be charged thereby." ,
As the petition upon its face shows that more than 20 years intervene between the date of rendition of the judgment sued on and the date of the commencement of this action, it follows that the action is barred, unless the right to sue is saved by reason of the other facts stated in the petition. The first question for determination is whether the provisions of section 2539 are applicable to actions founded on judgments. By its terms it is limited to causes of action 'founded on contracts. In the section providing for the periods of limitation, actions founded on contracts are clearly distinguished from actions founded on judgments, and different periods are assigned to each. It seems to me, therefore, that the same distinction must be observed when construing section 2539. It is clear that within the meaning of section 2529 the present action is one founded upon a judgment, and not upon a contract. If it was founded upon a contract unwritten, the period of limitation .would be 5 years, with the privilege or showing that it had been revived within 5 years last past by an admission or new promise in writing. If it was founded upon a contract written, the period oflimitation would be 10 years, with the privilege of showing that within the 10 years last past it had been revived by an admission or new promise in writing. If founded upon a judgment, the period of limitation is 20 years; but upon what section of the statute can be based the claim that an admission or new promise w-ill revive it? The very fact that the period of limitation is 20 years takes it out of the two classes of written and unwritten contracts, and it is only causes of action based upon contracts that can be by an admission or new promise under section 2539. But it is argued that the court may look bey()nd the judgment itself as a Cause of action, and ascertain it was based upon contract, and, if it was, then hold that the cause of action founded on the judgment may be revived by a new promise or admission in writing. Certainly it is not so expressed in the statute, and there exists no good reason why exceptions should be grafted upon it not fairly within the language used. Suppose A. should negligently
H'ALEER tI. CLAY COUNTY.
109
cause an injury to B., for which an action in tort would lie. In settlement of such injury A. executes to B. a written contract to pay him a given sum. Upon this contract judgment is rendered in favor of B. After the lapse of 20 years from the rendition of the judgment, suit is brought thereon. If, to avoid the plea of the statute by proving a new promise, it was permitted to B. to show that the judgment 'was founded upon a written contract, should it not likewise be permitted to A. to show that the contract was founded on a tort, thus showing that the original foundation of the action was nbt a contract, but was a tort? Certainly it was not intended that the court should investigate the origin of every cause ofaction evidenced by judgments in ordf\r to ascertain the period of limitation applicable thereto. The periods provided in the statute apply to the cause of action in the form in which it is made the foundation of the action to which the limitation is pleaded. The sole inquiry, therefore, in the present case is as to the cause of action on which the present suit is based, and, it appearing that it is founded upon a judgment, the period applicable thereto is 20 years, and the provisions of section 2.539 are not applicable to this class of actions. Furthermore, to revive a suit based upon a contract under the provisions of section 2539, it is necessary that the written admission or new promise should be signed by the party to be charged therewith. The admission claimed to exist in the present case is found in the answer filed in the name of the county to the information for the mandamu8. The answer is signed solely in the name of the attorneys appearing for the county. In the case of Carpenter v. District Tp., 58 Iowa, 335, 12 N. W. Rep. 280, the supreme court of Iowa held that an indorsement entered upon a warrant by the treasurer of the school-district, and signed by him, was not the act of the district township within the meaning of section 2539, for the reaSOn that the treasurer had no authority to bind it by his contracts or admissions. The act done by the treasurer in indorsing the payments made upon the warrants was an official act wholly within the scope of his authority, yet it was held that it did not bind the district township as an adu\ission or new promise. In the case' at bar the attorneys doubtless had authority to sign the answer to the information, the purposes of that case their action bound the county, but it is equally clear that an attorney has no general authority to contract for and bind a county by admissions or promises; and therefore, under the doctrine of the supreme court of Iowa in the case cited, it must be held that the answer to the information, being signed by the attorneys only, cannot be held to be a writing signed by the county, within the meaning of section 2539. For these reasons the matters set forth in connection with the 'lnandnmu8 proceedings are immaterial, and the motion to strike the same from the amended petition is granted. It is also sought to strike, from the petition the allegation that since the bringing of this action the plaintiffs have had issued to them auxiliary letters of administration by the proper probate court of Iowa. The position of defendant is that foreign administrators cannot maintain an ac.tion for the recovery of .the assets of the estate without taking out letter$
no of itdministration:in this 'staie,iatid;;tlmt the latter be-fore the action is brought. On: plJr1JlM plaintiff that, while it:is true that auxiliary 'admifiistrationmnstbe had fnthis smte, when such letters are in factprocnred'the 'petition may be amended by the averment of the' issuance of. suoh1letters, and the action' may be sustained.. It cannot be questioned that 'under, the liberal JProvisions of the Code of Iowa touching amendments, the supreme courto£. Iowa has sustained changes in' the parties' plaintiff and other amendments which in principle would seem to justify the court inholding in the present Case that the action could be maintained. Wells v. Stombock,59 Iowa, 376, 13 N. W. Rep. 340. Whatever, however, is the true ruling on the ultimate question involved, the motion to strike out the averment touching the issuance of the auxiliary; letters in Iowa cannot be sustained. !:Dhe fact that such letters havebeeri issued to plaintit1s iS'1\ material and necessary matter to be averred., Whether the action as now pending can be sustained, having been broilightbefore the issuance of these letters,is a question that may not arisein:the case. If the defendant'does not in some proper mode raise thequestion,-'-it being merely a matter in'abatement,-but tenders someLother issue or issues, thiR defense, if it be one, would be waived. Under these circumstan4:les it cannot be said that this averment of the' issuance of the auxiliary letters is an averment of a wholly immaterial matterj and for this reason the motion to strike is, in this particularj , overruled.
,CoRNWALL l1',Ta;E NEW YORK.
(DiatriQt (Jourl, 8. D. NfJW ,fork. DAMAGES-REMOTE AND PROXIMATE VAUSE.
February 7, 1889.)
A boat, while loading, was injured by the swells from a passing steamer. Her loading was completlld witlJ, a full cargo, and she was then started towards her destination. 125 miles distant, and foundered near the end of the trip. Hela, that the risk of the trip sho\lld not be thrown upon the steamer, bnt that she was liable only for the injuries occasioned by the swells.
,:
In Admiralty. Hyland &; Zabriskie, for libelant. a. k A. Van Bwntvoord, for claimants.
BROWN,J. The libelant's boat,having received injuries while loading with ice near Albany by thumping upon the bottom in consequence of tbe Ilwells caused by the steamer 'New York in passirlgher, is entitled to recover all the direct and proximate· damages arising from the fault of the latter,aod no more. Scheffer v. Railroad Co., 105 U. S. 249. This doubtless includes the damages arising in the course of reasonable and propel' efforts to extricate the injured vessel from the· position in which