UNITED STAfrES, t1. ROUSTON.
'207
dutierr as, such common carrier of goOds and passengers. ,Language which charges the plaintiff with such incapacity or neglect in the conduct of its business that belief in the truth of the charges would, asa natural and pro1timate consequence, induce shippers of goods and passengers to refrain from employing the plaintiff as such common carrier, is actionable without proof :of special damage. The particular language complained of here is ,the statemen:t in defendant's newspaper that" over one-hllif of the ties in the road-bed [of the plaintiff] are rotten, and it is dangerous to run trains very fast." Such a publication is manifestly within the principle above laid down; and, as the complaint further avers that the statement was "false, * * * malicious, and made for the purpose of injuring the credit and business of the plaintiff'," a cause of action is set fortbtin the complaint. Motion {Qrjudgment on the demurrer as frivolous is granted.
,:
UNITED STATES fl. HOUSTON et
Ql.
,(I>Imict Court, D,Ka118a8, B'imDfilliBion: November IS, 180,1.) L , QeD.;
whereintq9 right: survives against hill,personal representatives, reVivor shall be had 1,'gainstthem; and Ilectlon 4536 provides that, if ,& liefendant die,S afterjudgment and before satillfaction thereof; his personal representatives may be' made i,n "ame is presoribed for reViving ac,,tions before jUd,amant. I:J;eld, that unller these sllction!!. where one of several joint defendants has died after' judgment, the judgment may be revived against his personal representative without other for section 1101 providtl$ that in alloasea Of joint suit U!ay be brought agaiul!t any oue(lf more of tholle ' '9., LDollTAT10N
at.
§ 4528; declares that on the death of a defendant pendinjf an action
Op'PAB'PY":"RmoB-JoINTDIIIl'BND4+n'B.
Where the United States :fiallrecovered againlltseveraldefendltuts, its right to revive the judgDlent against the of one of, them, sinee is not affected by Gen. St. Kan. S 2890, providiug that actions against execuoo.rsand administrators shall be commenced within :three years :from the time 'of notice of appointment lIond, and that otherwise the claim shall be forever barrod,
AOTIONS-Tllil\lPUs NON OOmJRRIT REGI.
, ,
,
AtL8.w. ' bythe'Unite!latates against Mrs. J. F. Streeter, as executri:jt of James Streeter, deceased. J. W· .tidy, U. S. Dist. Atty. J. W. McClure. for defendant. This is Ii proceeding to revives. judgment against Ml'B. of James Streeter, deceased. It appears from the pe.tition that on the 13th day of October, 1880, the United States, to its own use,reeovered judgment in thiEI court on the bond of Samuel D. Houston, James Streeter, and Sam,uelM. Strickler. Since therenio thei6th day of July"1886, said 'Ja.mes state of Kansas, and his will was admitted to probate on the 29th "pfl.y of J uly, The defendant, Mrs., J,!:F. Streeter, was made the,6Xecutrix of. said estate. ,She is a
J. F. Streeter,
PHILIPS,
J.
208
FEDERAL REPORTER,
vol. 48.
the first division of the United States district of the state of Kansas. The other. defendants, in said judgment 'are now non-residents of the statedf Kansas. To this petition for revivor Mrs. J., F.Streeter appears, and moves to qqash the motion for various reasons. , It appears that said Houston was a,receiver of pUblic:moneys of the United States, and that James Streeter and S. M. Strickler were sureties on his'official bond; and the judgment in question was rendered against them for breach of the copditions of said bond. ,The first contention of the :defendant is that the United States cannot reVive this judgment -against one of the defendants thereto without against all. 'Thecommon.law rule, it must be oonceded, is that, if the judgment soughLto: be rev.ived was rendered against two or more joint defendants, the scire facias must follow the judgment, and all of the ants, if living, ,should bemacle defendants to the writ; and, where one has died, the writ should be against the survivors and the heirs or personal representatives of the deceased. 1 Black, Judgm. par. 491. This results from the idea that the legal effect of a judgment on scire facias to revive a judgment, where the judgment remains without process or satisfaction. is ,.10' rtlmove the presumption 'of payment arising from lapse of time, and that it adds nothing to the validity of the judgment, only leaving,. it as it was when rendered. 'if}.c parte Pile, 9 Ark. 337. It has been held, that" this would ,not be "so, however, if o,ne ptt, e ,defendltIits,was dead';"or' sribseqrieiltlYJ1ischargedby h a fe:me sole defendant had become covert, and a new pa:rty incpDsequencehlJ,d been, in, a proceeding by sci. fit. , introduced upon or taken oft' the record." Greer v. Bank, 10 Ark; 457. And in Hansonv.Jac1cs, 22 Ala. 549, it is:\180 held that a proceeding to revive the judgment against the representative of theLdeceased party is the same as an 'a:ction on the the Cod,e of Practice permits a separate action on the judgment against one of the defendants. The statute of Kansas has made changes ili the ()Id common-law dcictrineof .contracts and the modes of procedure in civil actions. "All contracts which by the common law are joint only shall be construed to be joint and several." Section 1098,1 Gen. St. 1889. "And in the case;of,the death ()fone or m01'e'joint obligors or promisors the joint contract or debt shall survive against the heirs, executors, and administrators of the deceased obligor or promisor, as well as against the survivors." Section 1099. "In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prLse· cuNid' against any one or more of those who are so liable." Section 1101. And then, by section 1102, it is provided that the release of one of thepartiea jointly liable shall not discharge the others. By section 4162 it is provided that, if the action against defendants jointly indebted -upon· contract, the ·plaintiff may proceed against the defendant served, unless the court otherwise directs; and, if hetec6ver judgment, it may be entered against all the defendants thus jointly indebted,B() far as it may be enfol'ced against the joint property of all, and the seplirate property of the served; and, if the action be against defendants
be
UNITJj)D STATES
V.
209
severlllly liable, he may, without. prejudice. to his rights against those not served, proceed against the defendants served,as if they were the only defendants. Following up this same policy of the Code, section 4536 provides that, "if either or both parties die after judgment and before satisfaction thereof, the representatives, real or personal, or both, as the case may require, may be made parties in the same manner as is prescribed for actions before and such judgment may be rendered and execution awarded as might or ought to begiven or representatives, real or personal, or both, of such party." The mode of revivor on the death of a defendant pending theacti()n is prescribel1 by section 4528: "Upon the death of a defendantin. an action, wherein the right, or any part thereof, survives against his :persOoal representatives, the revivor shall be against them, and it may'also be against the heirS and devisees of the defendant, or both, when the right of action, or any part thereof, survives against them, '?-+fromwhich it is apparent, to my mind, that the mode of rev,iving a ,judgment after .the death of one of the defendants under the as the process of revivor pendente lite,. which is simply :upon Suggestion of the death and motion fOf revival against the representatives.alone 01 the dece1j.sed party. So in Read v. Jeffries, 16 Koo. 534, it ·washeld.that, if the judgment was against two parties, the action could be wainmined upon it against either of the. judgment debtors. Thia.· conclusion is ·fortified by the succeeding section, 4537: "If a judgmenLbecome dormant it may be revived in the same manner as,is prescribed for reviving aotions before judgment." The plaintiff unquestionably,afterthe lapse of the period in which execution might run under the local statute on its judgment, could maintain its action atJaw for a new: judgment against either one of the defendants without bringing in the othersjand I think the Code contemplates the same right in the ,proceeding to revive. The next contention of counsel for defendant is that the right of action to thus proceed for a revi.vor is barred by the statute of limitation of the atate. ' It is held by the supreme court of the state that an action cannot be mainmined ona dormant domestic judgment, or a revival of the same had,/when more than three years have elapsed from the death of the judgment creditor and the appointment of an administrator of the estate Qf the ,judgment creditor. Mawhinney v. Doane, 40 Kan. 676, 17 Pac. Rep. 44.. And by seotion 2890, concerning executors and administrators, it'isprovided that suits against executors and administrators shall be commenced within three years from the time of notice of appointment and giving bond; and that all claims not exhibited for allowance within three years shall be forever barred, etc. Section 2865. The question to be decided is: Do these special statutes of limitation to a demand in. favor of the United States? The have any maxim null""mtemptL8occurrit regi is of universal application, except where by express :statute a period of limitation is prescribed. I do not find that of Kansas .has made any such prescription respecting actions in. f"vor of the state; .and, if it had, such local regulation could v.48F.no.3-14
FEDERAL REPORTLIt,
"01;.48. aptly
thave rioap-plication to tbe: rights' 'of the gen'eralgover1lrrterft i JUdge STORY; in u. S. 2 Mason,.
lsnot to be presumed that a state legislliture' ,tnean to their constitutional power: and therefore, however general the. wordS may be, they are:alwBys restricted to persons and ,things over which the !jurisdiction of the liltate Ql"y be rightfully,exercised." GRAY,inU.S. v."Railway Co'.; 118 U. S. 125,6 Sup. " , .,' , Ct. Rep. W06; observed: "It beyond doubt or the foundationaf the greatprhiclpleof public policy. applicable to allgovernmentll alike, which forbIds tlmt,the. public inter,ests should be prejUdiced by the negligence of officers :or'agents to ,whos6care they are, conllded-that the'{Tntted States, asserttng ;rigbtll them asa sovereign government. not bound ,by any stat:Its intention thllt /ilhOt:!ld be 80 bQund." ,. '" , '' ' . , WbiJe:a,judgment in favor of the United States, rendered in this (lourt, to be a lien 'on property in the state within the same period preseribtJd!bythe statute as to such Uel18 in:general, it is by reason of pOE$itive'enactinent by' congress.. So the modes 'of proceeding in civil cwSee in ,the near as may be, to those' uistingat the time In the' <iOurts·of· recordi I)f the state. Section 914, ,Bevl.St. u.s. And a party recovering jUdgment ina commob'o law'C8use<i'ri any circuit,'or district court':oftb United States is entitled 'to simidalf !remedies 'UPQri the same, by:.execution or otherwise,to: reach the 'pr0pertyof' the; judgment debtor; as are 'provided in like causes by the Btate;inwhichthe coul'tisheld. Section 916, Rev. 'St. u; S., :. It does not follow that such' forms of procedbre and 'such remedies.areto<be·cut'off or denied by lapse oftime or· by positivelegislative enaetmentof the state'" as. it respects a ,caUse of action in favor of the Unilf'd States, or a judgment recoveredby it to own use and benefit. It' doe8l111!Otappeal' from: tbe'motion in ,this case thanhe administratIon in question by the execut'rix has been closed. There is no legalpresumptio11 thiltithasbeen. Beithat 'as it mlliy, the right onhe United States to proceed, for the enforcement llf this demand against the estate to reach assets that have' come inta thehauds of the executrix, ifulldistributed, or, to reach-property which:has gone by devise or descent to the:"hafrs,' is in no wisElafi'ected. Paytne'y. Hook, 7 Wall.. 425., What eourMpfor the collection of this debt,the,United States attorney may take altet',the reprovides, vivor, is not before thElcourt. Section 3466, Rev. St.U. i"lJ,ter alia, that whenever the estate of any de(leasec.ldebt(}r of the United States in the hands of executors or administrators is insufficient to :pay alHhe debts due from the deceased, the debt due the United States shall ,be first' satisfied. 'Section'S467 provides that every executor or admilliBtratol'whopay8sny debt'dueby,theestate fonthich headts before he satisfies and payethe due to the United States fron':tsullh'estate shall' become answerable in .his own person and estate for the payment of the debt so due to United, 'And,the succeeding seotion .provides that where any surety on :abondgiven, to the United States ; " ,.,.,. r. ' ' . , . .· .. . I
its
!
)llX
l"ARTE EMMA.
211
the. United money due upon such bond, surety, his, eX,ecutor or administrator, shall have the same priority of right debtor,which the United States would have had. Debts, due the United ,States are tbesources of revenue needful for t,he maintenance and successful operation of the government. Every essen· tialright, of procedurll, remedy, and preference is accorded to it upon the highest considerations of public policy. The motion is sustained, and the order of revivor is directed.
& parte Ie 111m'11D
EMMA.
(l)IItrIee, ,COUf'C, Do AZmka. July
ss. 18OL)
t.he' organio act of Aluka,United States commissioners have jurilldlct.ion, in the flllt .nlltance, s11bject. to the supervision of the district. judge, In all test... mentary and probate matters. In accordance with t.he laws of Oregon, appUcable to that.t!li'lritory, and are vested with the jurisdiction of tbecount,courtof Oregon pertainJ!1w to probate C«1urt&. HINOBB.
&rA'l'lI1! COlOUUIOnR8-JURISDICTlON IX AL.UJlU-P:ao1I4'I'B PBoonDIX'"
..
, 'If tbe power to bind minors as apprentices pertain to probate oourts, it should be exeroisedb1.theUnited States commissioner. If it doN not, it belongs to "ooont, busine8ll' II and can only be exercised by the county judge and county commissioners;'sitting together. There are no oountiN nor count, commissioners in Alaska. In either case, the district. court is without jurisdiction to bind mino1"ll as apprenticea-
Application for Writ of Habeaa <:bIpuI. F. H. BlW"I'f,ngton, for petitioner. O. 8. JohntKm, for respondent. BUGBgg, J. The petition in behalf of Emma, an Indian girl, alleges that she' is 'detained and restrained of her liberty by one William A,.. Kelly, superintendent of the Indian mission school at Sitka, without warrantor authority in law. The return of said Kelly alleges that he is the superirirendent of the board of home missions of the Church, and also of the Indian Industrial and Training School at Sitka, which hM for its object ann mission the maintenance and education of native Indian children of Alaska territory, and ai5such sQperintendenthe has certain control and custody ofsaid Emma, who is, and for more than three years has been, an inmate of and attendant at such school, by vir· t\1e'-JilirBt;ofa written agreement made by her mother; 8econd, of a con· tract between respondent, as such superintendent,and a former judge of this tltird, of the order of this court. The facts are that the child is theiesue of Shawet Kunab, a native and an Indian chief, 1\'ithwhotti she consorted without legal marriage, but according to the customs'of'her race; that,after'separatinK from him, she was married:, undei1',the'sanction of the laws governing' this territory, to one Bop;de; that 'atter luch marriage the mother· plil.ced the child, in the' Indian school' 1
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Ii'
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