Glenn v. Saxton

Ross, J. — Glenn, Trustee, v. Williams, 60 Md. 93, was an action similar to the present one, and it is insisted by the appellant’s counsel that every point involved on this appeal was decided in appellant’s favor by the Court of Appeals of Maryland in the case there. If the fact were true, it would deservedly have great weight with us. But in respect to the statute of limitations, the two cases differ materially. The decree of the Chancery Court of Richmond, Virginia; by virtue of which the plaintiff in both actions proceeded, was given on the 14th of December, 1880. The Maryland suit was commenced April 9, 1881. The action here was commenced August 12,1884. In Maryland, the statute of limitations provides that “all actions of account, actions of assumpsit or on the case, actions of debt on simple contract or for rent in arrear, detinue and replevin, all actions for trespass for injuries to real or personal property, shall be commenced or sued within three years from the time the cause of action accrues” (Maryland Code, sec. 1, art. 57); and that three years’ statute was pleaded in bar of the action there. Here, the provisions of the code prescribing the periods for the commencement of actions other than for the recovery of real property are, among others, as follows:—

“Within five years,—

“1. An action upon a judgment or decree of any court of the United States, or of any state within the United States.”

“Within three years,—

“1. An action upon a liability created by statute other than a penalty or forfeiture.”

“Within two years, —

“ 1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or founded [355]upon an instrument of writing executed out of the state.” (Code Civ. Proc., secs. 335,-336, 338, 339.)

By section 343 of the same code, it is further provided: “An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”

If the cause of action in the Maryland case did not accrue until the passing of the decree of the Chancery Court of Richmond, as was held, and we think correctly held, by the Court of Appeals of Maryland, of course the action there could not be barred by the three years’ statute of limitation; for the suit was commenced within a few months after the making of the decree. Here, however, the action was not commenced until more than three but less than four years after the making of the Richmond decree; and the question is, whether it is barred by the provisions of the statute of this state, which are pleaded by the defendant in bar thereof. A statement of the case, therefore, becomes necessary. The action is to recover from defendant, who held certain stock of the National Express and Transportation Company, a corporation organized under the laws of the state of Virginia in the year 1865, an assessment levied upon his stock by a judgment of the Chancery Court of the city of Richmond. The complaint contains two counts, —both identical in their allegations,- ex'cept by the one plaintiff seeks to recover the assessment on fifty shares of stock originally subscribed by defendant, and by the other to recover the assessment on fifty shares of which he became the owner by assignment. The National Express and Transportation Company, according to the averments of the complaint, was a body corporate, duly incorporated under thé laws of the state of Virginia, for fifty shares of the capital stock of which the defendant, on the first day of November, 1865, in the state of New York, subscribed, and thereby undertook and promised to pay to the corporation for each and every share so