Tudor v. Ebner

This is an action to recover damages for false and fraudulent representations by the defendant, who was the president and manager of the Windham Bay Gold Mining Company, concerning the assets and financial condition of the company, whereby the plaintiff was induced to purchase a large number of shares of its capital stock. The second defense, to which the demurrer was interposed, alleges that at all the times mentioned in the complaint and at the time of the commencement of the action the plaintiff and defendant were nonresidents- of the state of New York, the former being a resident of Massachusetts, and the latter of the territory of Alaska; that the cause of action alleged in the complaint does not involve the title to or the possession of real property situate within the state of New York, and did not accrue within two years prior to the commencement of the action. In the

The theory of the appellant seems to be that the statute of limitations of Alaska was taken from our Code of Civil Procedure, and that subdivision 10 of section 3343 of the Code of Civil Procedure, which provides that “an ‘injury to property’ is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract,” not copied into the act of Congress, was but a mere embodiment of the common-law rule, and that therefore the statute of limitations applicable to Alaska should be construed in the light thereof. The assumption that these provisions of the act of Congress were based upon our Code of Civil Procedure is erroneous. So far as material here, they were copied verbatim, with the exception of a single word, not material to the present inquiry, from the Code of Civil Procedure of Oregon. Heid v. Bbner (C. C. A.) 133 Fed. 156 ; Congressional Record, 56th Congress, 1st Session, vol. 33, pt. 3, p. 2663. Doubtless the Code of Civil Procedure of Oregon was in the main based on the Code of Procedure of New York. The latter, so far as it related to limitations of actions at law, was adopted verbatim by the Bifth Legislative Assembly of the territory of Oregon, in 1854; and for this the state Legislature of Oregon in 1862 substituted a more extensive statute, known as the Code of Civil Procedure, relating, among other things, to limitations of both actions at law and suits in equity. Hepburn on the Development of Code Pleading, p. 101. There has been no judicial construction of the provisions of the act of Congress under consideration by the courts of Alaska, or of the provisions of the Code of Civil Procedure of Oregon, from which they were taken, by the courts of that state.

It is manifest that neither the provisions of our Code of Civil Procedure, nor the judicial construction thereof, can aid in the determination of the question presented; but a consideration of the provisions of the Code of Procedure which were copied into the Oregon statute, and of any decisions construing the same, may shed light on the question. In the Code of Procedure there was no'

We are of opinion, therefore, that subdivision 4 of section 6 of the Code of Civil Procedure of Oregon, and of the act of Congress prescribing the same for Alaska, was intended, like subdivision 4 of section 91 of our Code of Procedure, to prescribe a limitation of six years for an action for taking, detaining, or injuring goods or chattels, including an action to replevy the same, and that it was not intended to embrace an action for an injury to personal property, in the broad sense, which would include an action for damages for. fraud. It follows, of course, if this view be correct, that this action falls within the provision of subdivision 1 of section 8 of the act of Congress, which is to be construed literally as embracing any action “for any injury to the person or rights of another, not arising on contract,” and not therein specially enumerated, and not, as claimed by the appellant, according to the rule of ejusdem generis, and confined to personal rights, as distinguished from property rights.

There is no merit in the contention that the defense of the two-years statute of limitations is insufficiently pleaded. The statute of limitations of two years, and the facts rendering it applicable, are set up in the separate defense, followed by the allegation that the

It follows, therefore, that the interlocutory judgment should be affirmed, with costs. All concur.