ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
This is an action on a promissory note. The defence is the statute of limitations. The note was payable July 2, 1875. The debtor died in July, 1881. An administrator of his estate was appointed and qualified December 14, 1885. The action was brought February 13, 1886.
By the statute of limitations of Kansas, an action upon any agreement, contract or promise in writing must be brought within five years after the cause of action accrues; but it is provided that "if when a cause of action accrues against a person, he be out of the State," "the period limited for the commencement of the action shall not begin to run until he comes into the State;" "and if, after the cause of action accrues, he depart from the State," "the time of his absence" "shall not be computed as any part of the period within which the action must be brought." Compiled Laws of Kansas, c. 80, §§ 18, 21.
The statutes of Kansas also provide that a summons in a civil action may be served either upon the defendant personally, or by leaving a copy at his usual place of residence; and further provide that administration of the estate of an intestate may be granted as follows: first, to his widow or next of kin; second, if they do not apply, or are unsuitable, to one or more of his creditors; and third, if there are no creditors competent and willing to undertake it, to such other persons as the court shall deem proper. Compiled Laws of Kansas, c. 37, § 12; c. 80, § 64.
The two principal questions presented by the record and argued by counsel are: 1st. Whether the statute of limitations began and continued to run during the personal absence of the debtor from the State, retaining a usual place of residence therein, where a summons upon him might be served? 2d. Whether the running of the statute was suspended, after the death of the debtor, until the appointment of an administrator of his estate, more than four years and four months afterwards, although the plaintiff, as a creditor of the deceased,
could, at the end of fifty days from his death, have applied to have an administrator appointed?
Both these questions appear by the bill of exceptions to have been treated as arising upon the evidence at the trial, and to have been ruled upon in entering final judgment. The first one certainly was; and if the second was not unequivocally raised at that stage of the case, it was clearly presented by the demurrer to the petition, inasmuch as, by the practice in Kansas, the defence of the statute of limitations, when all the requisite facts appear on the face of the petition, may be taken advantage of by demurrer. Zane v. Zane, 5 Kansas, 134; Bartlett v. Bullene, 23 Kansas, 606, 613; Chemung Canal Bank v. Lowery, 93 U.S. 72. The defendant having answered over by leave and order of the court, reserving his objection to the overruling of the demurrer, the question whether the demurrer was rightly overruled is open on this writ of error sued out after final judgment against him. Teal v. Walker, 111 U.S. 242; Southern Pacific Co. v. Denton, 146 U.S. 202.
Both questions depend upon the local law of Kansas. By a provision inserted in the first Judiciary Act of the United States, and continued in force ever since, Congress has enacted that "the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Act of September 24, 1789, c. 20, § 34, 1 Stat. 92; Rev. Stat. § 721. No laws of the several States have been more steadfastly or more often recognized by this court, from the beginning, as rules of decision in the courts of the United States, than statutes of limitations of actions, real and personal, as enacted by the legislature of a State, and as construed by its highest court. Higginson v. Mein, 4 Cranch, 415, 419, 420; Shelby v. Guy, 11 Wheat. 361, 367; Bell v. Morrison, 1 Pet. 351, 360; Henderson v. Griffin, 5 Pet. 151; Green v. Neal, 6 Pet. 291, 297-300; McElmoyle v. Cohen, 13 Pet. 312, 327; Harpending v. Dutch Church, 16 Pet. 455, 493; Leffingwell v. Warren, 2 Black, 599; Sohn v. Waterson, 17 Wall. 596, 600; Tioga Railroad v. Blossburg & Corning
Railroad, 20 Wall. 137; Kibbe v. Ditto, 93 U.S. 674; Davie v. Briggs, 97 U.S. 628, 637; Amy v. Dubuque, 98 U.S. 470; Mills v. Scott, 99 U.S. 25, 28; Moores v. National Bank, 104 U.S. 625; Michigan Insurance Bank v. Eldred, 130 U.S. 693, 696; Penfield v. Chesapeake &c. Railroad, 134 U.S. 351; Barney v. Oelrichs, 138 U.S. 529.
In Patten v. Easton, 1 Wheat. 476, 482, and again in Powell v. Harman, 2 Pet. 241, this court had construed a Tennessee statute of limitations of real actions in accordance with decisions of the Supreme Court of the State, made since the first of those cases was certified up to this court, and supposed to have settled the construction of the statute. Yet in Green v. Neal, 6 Pet. 291, a judgment of the Circuit Court of the United States, which had held itself bound by those cases in this court, was reversed, because of more recent decisions of the state court, establishing the opposite construction.
In Pease v. Peck, 18 How. 595, it was because the statute of limitations of Michigan, as published by authority of the legislature and acted on by the people for thirty years, contained an exemption of "beyond seas," that this court declined to treat those words as not part of the act, although it was shown that they were not in the original manuscript preserved in the public archives, and that they had therefore been recently adjudged by the Supreme Court of the State to be no part of the act. The question there was not of the construction of the text of the statute, but what the true text was; and we are not now required to consider whether that decision can be reconciled with later cases, in which this court has held that an act of the legislature of a State, which has been held by its highest court not to be a statute of the State, because not duly enacted, cannot be held by the courts of the United States, upon the same evidence, to be a law of the State. South Ottawa v. Perkins, 94 U.S. 260; Post v. Supervisors, 105 U.S. 667. See also Norton v. Shelby County, 118 U.S. 425, 440.
In Leffingwell v. Warren, 2 Black, 599, 603, Mr. Justice Swayne, speaking for the court, laid down, and supported by references to earlier ...