Tison v. McAfee

Trippe, Judge. The suit of plaintiff was dismissed at the September term, 1869, of Lee Superior Court, by an order of the Court entered on the minutes, reciting that it was dismissed because the consideration of the note sued on was a slave. At November term, 1872, a motion was made to reinstate the case on the docket, and that it stand for trial. The Court overruled the motion, and on this refusal error is assigned. The motion, in effect, was to set aside the previous order of the Court granted in September, 1869, in so far as that order dismissed the suit of plaintiff. To that extent only do we consider the question as presented in the record. The note sued on was dated February 3d, 1863, and due January 1st, 1864. It will be observed that the motion to reinstate was not made until nearly three years after the note sued on; the cause of action was barred by the statute of limitations. Nor was it made within three years from the time the order of dismissal complained of was passed. Whether, under the right granted by section 3530 of the Code, the words, “ within the statute of limitations” be construed to mean three years, in analogy to the statute prescribing that period as the time within which a bill for a new trial must be brought, or to mean that period within which the plaintiff’s cause of action would be barred, this motion was not made in time. The views I have presented in the case of Prescott vs. Bennett et al., in which judgment has just been pronounced, I refer to and repeat here. In that opinion I confined the argument chiefly to stating why the seven years in which a judgment would become dormant was not applicable as a fixed, invariable time, to bar a motion to set aside, and why the principle involved in the second rule stated above, furnished, in my opinion, a more equitable and correct rule. I propose to suggest some reasons why such a rule would be more reasonable and preserve legal consistency more strictly than the one of three years, in analogy to the time for bringing a bill for a new trial. I remark, generally, as I did in Prescott vs. [281] Bennett, that that rule is clearer and more satisfactory in all its applications, by which the words of the Code, which have been cited, shall be construed to mean that the time in which the motion may be made shall be limited to that period in which the right, or the right of action growing out of the subject matter under judicial consideration, would become barred by the statute of limitations. This would be in harmony with the principle which sets up many different periods of limitation for different rights or causes of action. It would simply secure to a party, in a proper case for such a motion, the same time to assert his legal rights by the motion, which he would have to assert them in some other forum; no rule would be departed from, no principle violated, no right claimed that did not clearly exist, and which, if it could not be set up in that mode and in that forum, could be asserted in some other mode, or in another forum. Any other rule — a rule, for instance, which would fix one procrustean standard, one absolute and fixed period for all cases — might have the virtue of absoluteness, but it would be wanting in the greater virtue of having the quality of accommodating itself to and preserving that principle which, by the wisdom of all law-givers, prescribes a different measure of limitation for some cases than is prescribed for others. If the three years which is given as a limitation to bring a bill for a new trial be taken as the standard, it is obnoxious to that objection. In the case of a suit on an unliquidated account, dismissed after more than three years of the statute had run, and in a manner which would entitle the plaintiff to the motion to set aside the order of dismissal, it would grant the same time which would be allowed in a case of dismissal of an action founded on a contract that might have ten or fifteen years to run before it was barred by the statute. Indeed, in the case of the action on the account, whether it would be barred in six months or three years, the same period of limitation as to the right to reopen litigation would be allowed. And so in cases of promissory notes, whether five months or five years would bar an action on them, the same absolute period would [282] apply, and the same motion could be made in one case, even though several years after the debt had been barred, as could be made in the other, where several years would have to elapse before the bar of the statute would attach. When those causes of action are considered in which the right of action is limited to twelve months, as in a case of slander, or to two years, as in certain cases of trespass, the injustice and inconsistency of such a rule are more apparent. An action for words, where it would be trebly barred, could be reopened by a mere motion, with all the privileges as to time, that a plaintiff might have upon whose right of action the statute had scarcely made an inroad. For wise purposes these distinctions have been made between different actions by the statute of limitation, and Courts should look to them in adopting a rule of construction, and in applying and observing those distinctions whenever it becomes necessary in construing such general words as those now under consideration. The rule I have suggested is free from the inconsistencies referred to, preserves in full the whole spirit of the statute of limitations, and is not obnoxious to the charge of doing violence to the ancient legal maxims approved of in all Codes, by meting out the same measure to the vigilant and the slothful. It has been argued that the decisions of the Courts on this class of debts, by inducing such creditors to pretermit all efforts for their recovery, furnishés a ground to be considered in determining the plaintiff's right in this case. The order sought to be set aside was passed at the September term, 1869. At the December term, 1869, the question was decided by this Court as to the power of the Courts to hear and determine just such questions, and it was held that no such power existed; that under the provisions of the Constitution, by virtue of which such power was claimed, the jurisdiction was denied: 40 Georgia, 241. This decision would have been authority for several terms for the case to have been reinstated. But no motion was made. It is said that to have reinstated it, would, under the view tíren entertained of the law and the Constitution, have been of no avail to the creditor. But at [283] that time the question had been made and was pending before the Supreme Court of the United States, whether the clause in the Constitution that stood in the way of the creditor was valid, and it was decided to be void. This Court was divided in opinion on the matter. The question then is, shall a party, whose case has been dismissed, who could have reinstated it for several terms under the decisions then of force, but who does not move for several years, and until his claim is barred by the statute of limitation, as well as his right to relief in equity, shall such a party, suddenly awakened by the results of a contest in which he would not engage, nor even ask to be placed back on the record, so that he might be on the line of safety, be allowed his demand to share the fruits of victory won by the energetic and the vigilant? To state the question is to answer it. I know of no principle of law or equity which would sanction it: See Hudson vs. Carey, 11 S. & R., 10. I would remark that in recovering from the errors produced by a sort of abnormal condition in which the country -was thrown by a revolution, we should be careful not to commit others that might be equally as hurtful to the ancient landmarks established by the law and always enforced by the Courts. As this motion was not made within the time required by law, I am of opinion that the judgment of the Court below, ovei’ruling the same, should be affirmed. Judgment affirmed.