DEMl"SEY t1. TOWNSHIP OP OSWEGO.

97

DEMPSEY t1_ TOWNSHIP OP USWEGO_

(mrcwtt Court Qf AppealB, E41hth Ol.rcuu.

May 80, 18llS.)

I.

J(j.ND.lJItJS-:M:UNICIPAL CoRPORATIONS-DoRMANOJ' 011' JUDGJlEN'l'-LIMI'UftONI.

therefore that, under the state statutes relating to the life of judgments, (Gen. St. Kan. 554M2, 4537, 4522, 4525, 4530,) as construed by the state courts, a judgment against a municipality becomes dOl-'mant if more than five years elapse between the Issuance of two successive writs of m.antdamm, and abSOlutely dead If no application to revive is made or suit brought upon the judgment within one year after the expiration of the yeal'f.
1,' LIM1TAT10;NB-ToWNSBIPII-SBRVIOBOII' PROOESS ON 01l'1I'10BR8.

fnwndamm. Held, that for the purpose of keeping a judgment alive such a mandamm is equivalent to the issuance of exeoution against a private person. !Iond

The statute!! of, Kansal! provide that judgments against municipalities shall be paid by taxation, and that the levy and collection of taxes may be enforced 'by

Section 2,1} ,COde Kan.", provides that t,be time of the absence from the state or the concealmenli Ilf a person against whom a cause of action acorues shall ,not be computed as part of the pllriod within which the action must be brought. He'ld that, even if this section can be held to apply where the persons elected officers of a townBltw either fail to qualify or remove from the township, for the purpose of preventing the enforcement of against It, still the question is not presented where service of process or of notice to revive tile judgments could have been made, within the statutory period, upon a trustee of the township, such trustee having been duly appointed by the county commiBslonere, upon the ground that there were no townshipoftlcers.

.. TOWNSBIPS.....NoNRBS1DBNT OIl'll'1OBR-SERVIOB Olf PROCBSS.

The fact that a township officer removes from the township and thereafter resides in another township of the same county, does not necessarily prevent the service of mandam1U1 upon him. Salamainoa Tvl v. WUlon, 8 Sup. Ct. Rep. 844, 109 U. S. 627, followed.

"

MANDAMlrB-L1M1TATIONS-PENDENOJ' 011' PROOEBDINGS.

Where a writ of mandammwas issued and served, but no other steps were taken for more than six years, it cannot be said that the mandamm proceeding was pending during that time, within the rule that limitation does not ron against a party while he has a suit pending to enforce his claim.

In Error to the Circuit "Court of the United States for the District of Kansas. Affirmed. Statement by SANBORN, Circuit Judge: This was a writ of error to the United States circuit court for the district of Kansas. On the 13th day of November; 1886, plaintiff in error' bTought an action against the township Of Oswego upon two certain judgments against the defendant, which . had been assigned to him. Defendant admitted the rendition and assignment of the judgments, but pleaded that they were barred by the statute of limitations, and that this question was rea adjudicata. Plaintiff l'&plied that mandam'lUJ proceedings were commenced shortly after the judgments were rendered, and bad been pending ever since, and that the citizens of-the town and its officers elect had prevented any of those elected to office from qualifying since the judgments were rendered, and those elected in the year the judgments were rendered ceased to act, and left the state within a year thereafter. Ajury trial was had. Thejury returned special findings of fact and a general verdict for the defendant. Plaintiff and defendant each moved the court for judgment. The court denied plaintiff's motion, and entered judgment in fa"tor of defendant, to which ruling plaintiff excepted. v.51F.no.4--7

The special findings of the jury. so far as they were material, were that on November favor of George O. Marcy against the defendant township for $2,600. On April 9, 1878, il,l Ja,ypr .of William N. $1,504. The treasurer of the township, who was elected and who qualified in 1877,. shortly after" move4 0Ut'oI,'lIM: 1#. as but!,shortlY'aftermoved ,mto another townsbipm the same the county of ct)unty. 'Op. Labette2tnadea mgd-il'lg,on petition, that there were no· officers of said [9P9, tow;ps.l1ip, who q,uali,fied as :.SIBce ·lived in, the:: county ol,:Ln.bette, but was living out!'ide of .. were .a,wp-stee, The andderk: eJected andl of "1878, and. the three officers, ..m,l$17".cefl,sea"to actas No other q,ualipedfr()1li1878;to 1886,,' and nona as. suc4 in: those , Qfficers were elebted tlierewas an understanding "generally known a:inorigtne 'fuwnship ihleeted, would fail to thiewould tiefeatthe bonds on account of which ,Oil·J\me 16,'1$77, writ oe \'upon the Marcy judgment,..<which was served !July 21, 1877. On 19, 18,77. a peremptO'ry(:writ was issued. OJlDec6rnber;18, 1878 y::e,n'aliaa peremptory writ' ",tiS.iss.ued. On June mandamm was on the Field judgment,which was serVed,o.D July17 1 1878. On Deceniber 15, 1885, the mandamus proceedings on these two judgments were consolidated by or· d.er.'()f the! CQUrt. 1tS85"a.n lpformartton was fileq, in the consolidated case, and an alternative writ issued.:infavor of the plaintifl' in error here, Edward C.,: Dempsey. Januaty 14, 1886, the wtitWlts.', returned/served.: 'June 10, 1886; a motion:to quash the writ wllS fileli, and granted,'and the wtitquashed. Entries of books of tbeQlerk of. the ,.Dotationsof continuances in nearly if not qllite ,every year :frolD' ,.1871, ,to 1890.: In 1886, an,ordel' file an 'amended information, and in 1889 &Pi orderWlLa made, thetimeito,file a bill of eX:ceptions. ,(Jeqrge William R.BOloers, for plaintiff'in error. il:NelBtm ChsedmdrW. for defendant.inerror., ,,, ,.Bl1fol!e.CAIJDwELL:and lS1ltBORN,i :Circuit ,Judges,and .SHIRAs,Distridt J.udge·.,' 'i' ,! ...
f ':

'n

,SAN1IORN. "Under the ,decisions ofttbe :$tipreme court of the stl'J,te. of Kansas C6D.sttwmg the.1!ltathtas of that .stlrieoD this subject, this a.ctionwas batred: atatut:es' of limi.tation· of:thati state. whehit was cQmm.encecl.,o '2,Gen.St.Ka,u. §§i092, 4095, 4542" ,4J>37;' 4522, 4524, 4525,4530.4531; Bt£rn8 v. Simpson, 667; Mawhinneyv. Doane, 40 Kun. 675.678-680,17 Pac. Rep. 44; Angell v.' Martin. 24Kan. 336i

99
14 i'Karr.. 503;'Gruble'v.' Wood, 27 Kan.'536,537j Martin, 24 Kan;'33t335; Scroggs''!. 23 Kan. 182, 186j U. S. v, Township of Ok/»ego, 28 Fed: Rep. 55. The statutes of Kairsas provide that, if execution shall n.QF 'be sued Qut \vithin five years from the date of any judgment of record in that state, or if five)'ears shan have intervened between the date:of the last eiecution issued on such judgwent and the time of suing out,anothet «'rit of execution thereon, dormant, (section 4'q42j) that such judgsuch judgment shall the court on application and notice ment may be revived by'brder within oneyearaJterit'becomes dOl'mant;nndtbat,ifsuch order is not been made, it made within one year' from the tiIne it could first shall not he made at all 'unleSS .by the consent of the debtor or his representlttives. Sections 4542, 45'37, 4522-4530. In thec'aE'e at bar no execution issue againstJhe township, but the writ' of mandamus to' enforce collection of jl1dgmentsagainstmunicipalities performs the office of, the the writ of execution upon judgments against private individuals, since the legislature has provided that tbese judgmeritsshall be paiel by taxes, and the levy and collection of the taxes may be enforced by 'I1Utndamus. It follows that under the' Kansas statutes a judgment against a municipality will become dorm'ant if tbecreditor permits a period of mOre than five years to elapse between thlHendition of his judgment and the issuance of a writ of rnandnmus,' or between the dates of the issuance of hvo successive writs of'11lltndamus. U. S; v. Township of Oifwego,28 Fed. Rep. 55. Between the 3d day of June, 1878,ltnd the 16th day of December, 1885, no writ issued upon either of these jUdgments, nor was any moof tion or application made within one year alter they became dormant, or ntall, to revive them. Where'a judgment has been permitted to become dormant by the neglect of the creditor to issue the proper writ for five years, and no application or motion to revive is made or suit upon the judgment brought within ope year after the expiration of the five. years, the supreme court of Kansas has unilormly held that the ment becomes not only dormant, but dead, and no suit can be maintained upon it. See authorities supra. It is not important here that the courts of Nebraska and Ohio have adopted a different rule in the construction of similar statutes. No constitutional rights are here affected, no federal law is in question. The rights of these litigants are governed by these statutes of Kansas, and it is sufficient for this court that the highest court of that state has decided tbis question. . But plaintifflscounsel contends that he is excepted from theopera'tion of these statutp.s and decisions by the fact that. tbere were no officers of the township qualified and ncting therein from 1878 until 1886. That the citizens of the town conspired with the officers elected during that timet!) prevent their qualifying forthe purpose of prevtlntir1g th.e enforcement of That section 21 of the Code of Kansas provides: "Ifl these when a cause of action accrUes against a person, be be out of the e:tate, or has absconded or concealed himself, the period limited for thecommencement of the actidn shall not begin to run until he· comes into the state,

':fumerv.

or

FEDERAL REPORTER,

vol. 51.

or while he so absGonded or.,collcealed; and if, after the cause of action accrues.,' he depa/:t.from or abscond or the time of his absence or concealmElllt shall not be as any part of the, period within. w:Qich the must be brought;", and, that this case is so far within the spiritifnotthe letter of this statute that the exthere made'should be to it. A complete answer to this contention is that the fl.!-cts of this case do not raise this question. They are:, · That the threej>rincipal officers of the township were a trustee, clerk'. and treasurer; that the treasurer, who was elected and who qualified i,n 1877, moved out of the tow.nship, but thereafter resided' in, tlle county;, that no aUCClJssor of this treasurer qualified until J. P Updegraph was elected and gualified as treasurer, but i;!portly a,fter moved, ,illto another township in the same county ; that on 4. 'pr11.10,. th" ,u,'l1,ty c,ommi,ss,'i,oners of the county m.,lilde a finding tnll,t "there :were no officers of the township, and appointed John Judd thereof, as had authority to do under the Kansas statutes; pequalified as such, and has ever since lived in Labette county, in 1884 was not livi l1 g in Os:wego township. From. this statement oftpe fa.cts found it, pl'llarly appears that there was ample opportunity to aei'vllPJ;ocess on one of the officers of this township during a large part of the of the judgments and the commencement of this suit., During, ,all of the sixth year after the d,!ite, of the earlier writs of mandamu8 service could have been made on Mr. Judd, the, trustee, and thejudgments thus reviyeq. That other officers who were electeq., did not qualUY; that these who did qua,H:(y lived outside the tQwnshjp, but witbiJ;lthe coul1ty,-would not necessarily render invalid tlle service of notice or process upon them ofofficersof this township. Salamanca Tp'.iV. 1q9 U. S. 627,,3 Sup. Ct. Rep. The facts ohhis case do not bring it within thlJ exception of this. statute if the statute couldbe held to apply to such a case. that the suit on judgments is not Finally, l?Jaintiff barred by tPi:l s'tatutes of liUlitation and dormancy, because these darnus upon t4e ju<;lgments have always been pending; and he invokes the rule that time does not run against a party under a stat-e ute of liIllitations whik he has a suit pending to enforce his claim. It is undoubtedly true that, Jf the plaintiff had seasonably brought suit upon these judgments, as he has dope in this case too late, time would not havl;l, against him while such a suit was pending; but here the against analogy between manqamus proceedings upon palities and the writ of execution uponjudgments against individuals must notbe .lost sight of. Would. the fact that the creditor in a ment against an indiVIdual issued an execution, and thereby tried to enforce and continued to to enfo.rce his judgment for five years, prevent the statute of limitati()l1s from running against him 'I Certainly not. N.,either will .the mere fact shown in that in 1877 and 1878 writs ,of mandamus were is!:1ued, in, proceedings to collect wh,ile no furtqer,st 7 were ps and no other action these h,ll-d for lllore than sixye,ars, prevent the running of the stati",', ,'." ',,-, ".

HEWITT V. STOBY.

101

utes upon this action upon the judgments. Such proceedings, or rather such want of proceedings, do not constitute a suit pending upon the judgments within the rule invoked by plaintiff's counsel, especially in view of the fact that in these very 'IIUlndamus proceedings before Mr. Justice BREWER, then circuit judge of this circuit, all the vital questions in this case were considered and determined adversely to the plaintiff, and the writ quashed, in U. S. v. Township of Owego, 28 Fed. Rep. [i5, in 1886. If the plaintiff in this case has failed to collect the money that was due him it has not been because he was remediless under the law. It has been because for more than five years he issued no writ upon hisjudgment.. when he could have had a writ for the asking, and because he brought no suit, and made no application to revive his judgments, for more than three years after they became dormant, at a time when there was ample opportunity to serve notice and process upon the defendant. The judgmentagainst him was right, and it is affirmed.

HEWITT'll. STOBY

et al.

(Oircuit Oourt, S. D. Oalifornia. June 13,

lBBIGATrON-ApPROPRIATION-ABANDONMENT. Certain persons appropriated, by means of the B. ditch, the water remaining in a stream after two prior appropriations. The supply insufficient after several years, they each purchased a certain number of shares in the T. ditch and the water appropriated by it, and diverted the same to the B. ditch. After a time other shareholders in the T. ditch also, by permission, diverted their water through the B. ditch, and finally the T. ditch was abandoned, and all the water taken throngh the B. ditch. Thereafter for many years the entire amount of water taken through the B. ditch was distributed in proportion to the ownership of shares in the T. ditch appropriation, without regard to the original appropriation by means of the B. ditch. Held, that this constituted an abandonment by the original appropriators and their successors of their claim to the water originally taken by the B. ditch.

In Equity. Bill by Isaac L. Hewitt against Warren Story and other/! to establish a right to take certain water for irrigation and other purposes, and to restrain interference therewith. Bill dismissed. For prior reports, see 39 Fed. Rep. 158,719. RoweU &; Rou'eU, John A. Wright, A. W. Thompson, and Brousseau&: Hatch, for complainant. George E. Otis, H. C. Rolfe, Byron Waters, Curtis &: Otis, and R. E. Houghtcm, for defendants. Ross, District Judge. I have examined the voluminous record in this case with care, and am of the opinion that the averments of the bill as amended are not sustained by the evidence. The complainant's tention is that he is the owner, and entitled to be protected in the use, of 333! inches, measured under a 4-inch pressure, of the waters of the Santa Ana river, which he alleges were appropriated by his predecessors