4,74
.
BISBEE
v.
EVANS
and others.! Juno 19, 1883.)
(Circuit Court, D. Kentucky. 1. 2. STATUTE OF LmITATIONS.
Unite,l :States courts of equity do not apply the state statute of limitations in obedience to tho statute, but by analogy. The statute ceases to run in favor of a defennant who is a of tho district, when complainant has obtained process against him, or done all that is necessary to obtain proeess, and not before.
SAME.
3.
Section S of tho judiciary act of :March 3,1875, does not fix the time when suit is commenced against non-inhabitant defendants so as to stop tho runuiug of tho statute.
In Equity. On demurrer. Wharton cf: Ray, for complainant. James S. Pirtle, for defendants. BARR, .T. This case is suumitted on demurrer to defendant Evans' plea, setting up the Kentucky statute of 15 years in bar of the action. The bill was filed May 11, 1881, and seeks to enforce a vendor's lien on a lot in this city for purchase money, evidenced by a note due February 4, 1867. The bill made Hegan Bros. defendants with Evans, but they were in no way liable for the note sued on, and were alleged to haye been the owners of another vendor's note, which the bill alleged had been paid. Hegan Bros. answered, July, 1881, insisting they had not been paid. The bill alleged that Evans was not an inhabitant of the district, and could not be found in it, and prayed for an order of court requiring him to appear and plead to complainant's bill. The bill was not sworn to, and the necessary affidavit for snch an order was not filed until April 12, 1883, when it warning order was entered. The question is when the action commenced as against EYans. lRcpol'tcd by Gco, D\1 ,So Atty·..
lHSDEE V.EVANS.
475
The Kentucky statute provides that "an action shaH be deemed to have commenced at the date of the summons or process issued in good faith from the court or tribunal having of the cause of action." This, however, does not control this court .. Courts of equity in the state allow the bar of the statute of limitations in obedience to the statute, but United States equity courts apply the statute by analogy, and not in obedience to it. The equity rules of the supreme court authorize, as or course, the issuing of a subpama by the clerk after the filing of the bill, upon the application of the complainant, but the wal'lling order against a defendant, not an inhabitant, must be made by order of court. The plea of defen.Jant is upon the theory that this suit was not commenced, as to Evans, until at least this warning order was made by the court. The complainant insists that under the provisions of the eighth section of the judiciary act, approved March, 3, 1875., thE;l suit is commenced at the timp of the filing of the bill in the office, and that the warning ordpl' cannot, by the terms of this section, be made until the suit has already commenced. The language is: ,. "'hen, In any snit commenced in any circnit court of the United States, to enforce any legal 01' equitable lien upon If< '" * real or per80nal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, '" it shall be lawful for the court to make an order directing such absent defendant or defendants to appeal', plead, * * * by a day certain, to be designated, .., * If< and in case such absent defendant shall not appear, plead, '" * '-, and upon proof of the service or publication of said order, <lnll of the pcrformance of the directions cuntained in the same, it shall be 1'1 wful for. the court, to entertain jurisdiction, and procel'd to the hearing and adjudication of such suit in the same manner as if such absent defcndant had been scrved with process within the said district."
The subsequent part of this section provides that this service shall not give the court jurisdiction to render a personal judgment, but that the adjudication shall only affect the property. however, is not pertinent to the question under' consideration. In construing tbis see:tioll Ive must look to the scope and object of the enactment. It is true, the suit is commellced upon the filing of the bill, for the purpose of taking the necessary steps to bring the defendant, who is a non-inhabitant, before the court. This is true in a suit against an inhabitant, and the court may make orders necessary or proper to bring the defendant before the court as soon as the bill is filed. But ,does it follow that congress declared in this section a suit commellcecl against a non-inhabitant of tlJe district upon the mere filing of the bill, so as 'Lv stop the running of the statute of limitations? If we are to look alone to the language of the section, is it not rather when and anI/ when "it shall be lawful for the court to entertain }urisdiction" tba t the suit is cO'lI!!Jlellced against the ant It seems to me that congress did not intend and not--c1etermined when a sui,t is commenced defendant
476
.FEDERAL REPORTER.
so as to stop the running of the statute of limitations, and that this court must determine the question in the absence of a statute. Whenever a complainant has in good faith obtained process, or, it may be, whenever he has done all that is necessary for him to do to obtain process to bring a defendant before the court, then his suit is commenced as to that defendant, and then the running of the statute ceases, and not before. In this case it was the duty of the complainant to obtain process under the provisions of this section, or at least to have filed an affi· davit and moved for the proper order, and as he did not do this un· til after the expiration of the 15 years, tb'3 demurrer to the plea should be overruled. This view is sustained by Pindell v. Maycllccll, 7 B. Mon. 314; Lyle v. Bradford, 7 Mon. 111; Hayden v. Bucklin, 9 Paige, 513; Fitch v. Smith, 10 Paige, 9; Webb v. Pell, 1 Paige, 564; Buss v. Luther, (4 Cow. 158,) 15 Amer. Dec. 341, and note.
l' ATnICK
V.
LEACH and others. :May, 1881.)
(airwit Court, D. Nebraska. 1.
A'ITORNEY LIEN Fon l<'EEs-.]uDmIENT-LACIIES.
\Vhere an attorney at law has ollla.ned a jungment for his client, on which he is entitled by law to a lien for his fees, anci has perfected his lIen in accordance with Ihe provisions of Ihe law, he may enforce it, notwithstanding a compromise and settlement made by his client with the other party, although he has not made himself a party to tIle record. S.UIE-ATTor:NEY INTERVENING.
2.
Where it is necessary, in a suit to set aside such a judgment, to protect the attorney's lien, that he be made a partJ' to the suit, the court will allow !.lim to in tervene therein.
In Equity. J. M. lVoolu,'orth, for plaintiff. Cowin and Howe, pro se. MCCRARY, J. These petitioners are the attorneys for the respondent Leach, and were his attorneys in the state court in which the judgment was rendered against complainant, which is sought to be enjoined. They claim a lien upon that judgment for attorney's fees. They filed their lien in the state court, but whether they gave the notice required by law is a matter of dispute; petitioners asserting that they did, and Patrick that they did not. The petitioners say that they relied upon their lien, and did not anticipate tnat their client would undertake to settle and satisfy the judgment without their consent, and that, therefore, they did not deem it necessary for the protection of their rights to make tl1emselves parties. Their client, Leach, did, however, prior to the announcement of a decision by the court in this case, enter into an
