Smyth v. Peters Shoe Co.

Waterman, J. 1 We need consider but one of the several matters discussed, and that is the plea of the statute of limitations. The levy of the attachment was made on March 18, 1891. The sale was had April 24th of the same year, and this action was not begun until December 24, 1897. Under the statutes of the state of Missouri, where the cause of action arose, and where defendant resides, an action of this kind is barred in five years. Section 3452 of our Code provides: “When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense as though it had arisen under the provisions of this chapter, but this section shall not apply to causes of action arising within the state.” That this section applies to a case such as we have here seems manifest from its terms. This court has 390 in .several instances construed it according to its plain import. Lloyd v. Perry, 32 Iowa, 144; Lebrecht v. Wilcoxen, 40 Iowa, 93. We are cited by appellee to the case of Winney v. Manufacturing Co., 86 Iowa, 609, as holding that a foreign corporation cannot avail itself of the de ■fense of the statute of limitations of this state. The question at issue there was, under what circumstances a foreign corporation could set up the bar of the Iowa statute. Here it is claiming the bar of its home statute, under which the cause of action arose. Lebrecht v. Wilcoxen is in point on the proposition that a defendant does not have to become a resident of this state to enable him to plead the bar of a foreign statute. 2 II. It is contended further by appellee that his cause of action did not accrue until the final determination of the attachment suit i'n which he intervened. This was in November, 1896. We think this court has settled the question that the cause of action accrues when the property is taken, or at the latest when it is sold under the writ, in a case of this nature. The fact that plaintiff intervened would not toll the statute. Garrett v. Bicklin, 78 Iowa, 115, was an action for damages for the wrongful seizure of plaintiff’s property under a writ of attachment against another. Garret intervened in the attachment suit, claiming to be the owner of the property. When he brought suit for damages, the statute of limitations was set up, and on this issue this court said: “Appellant’s [plaintiff’s] theory is that the cause of action arose at the date of the final judgment in the former proceeding, April 21, 1886; while that of appellees is that it arose when the property was first taken on attachment, in March, 1882, or at furthest when it was sold and converted by virtue of the special execution in April thereafter. To the query, could the plaintiff in 1882, when the property was wrongfully taken, or when it was wrongfully sold and converted, with no other suit pending, have commenced this 391 proceeding to recover its value ? there can he but one answer, and that is in the affirmative. The answer should be decisive of the question presented by the demurrer unlessj there is something in the fact of the intervention proceeding to defeat that right. It must be conceded'that after the seizure of the property, and before the filing of the intervention petition, Garret had his choice of remedies as between the intervention proceeding to secure the property and an independent one to recover its value. We do not understand that, where a party has a choice of remedies, and makes his election, the statute ceases to run as to the other remedy. We think that a right of action arose in this case at furthest when the property was sold, and the proceeds paid to defendant herein. * * * We are referred to no authorities, and we see no reason for holding, that the statute will cease to run to enable a party to first determine his ownership of property, and then, by another proceeding, recover its value, when pending the first proceeding, it is apparent that an action for value is the only available one, and open to his choice therein.” See, also, Valley Bank of Clarinda v. Shenandoah Nat. Bank, 109 Iowa, 43. It is in evidence that under the statutes of Missouri plaintiff had the same remedies as are given by our Code, and his election was identical with that made by Garrett in the case from which we have quoted. Something is claimed for the alleged fact that this plaintiff was made a defendant in the original attachment, suit. It is thought because of this the statute could not begin to run until final determination of that action. If this fact would alter the rule, — a question we do not determine, — it can have no weight here. The petition makes no such claim. The allegation that plaintiff intervened in the attachment suit is inconsistent with the theory that he” was a defendant, for a party to an action cannot intervene in it. The evidence all shows that plaintiff did intervene. The files in the attachment case were not offered in evidence on this trial. The only foundation for the claim that Smyth 392 was a defendant is in this statement made by him when on the witness stand: “They [the. attachment plaintiffs] amended their petition, and made me a party to the suit by claiming that I was a partner of Casebeer’s. I think this was before I interpleaded, though I may be mistaken.” If it was done after the interplea, it could not affect the matter we have under consideration; and it does not appear but this was the case. It is not denied that in response to the interplea the plaintiffs in attachment, by reply or answer thereto, alleged that Smyth was a partner of Casebeer, and we are inclined to believe in this way only was such a charge made. We conclude, on the whole, that this action was barred, and it was error to render judgment in plaintiff’s favor. — Reversed.