MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.
The cause of action accrued May 13, 1862, when the judgment sued on was recovered; and the case turns upon the question whether the action was commenced within ten years afterwards.
As the facts relied on by the plaintiff to prevent the bar of the statute of limitations occurred in May, 1872, the question is not affected by the act of Congress of June 1, 1872, c. 255, § 5, requiring the practice, pleadings, and forms and modes of proceeding, in actions at law in the Circuit and District Courts of the United States, to conform, as near as may be, to those of the courts of record of the State. 17 Stat. 197; Rev. Stat. § 914.
Before the act of 1872, the form of mesne process and the forms and modes of proceeding in actions at law in the courts of the United States in Wisconsin were such as were used in the highest court of original jurisdiction of the State at the time of its admission into the Union in 1848. Acts of May 19, 1828, c. 68, 4 Stat. 278; August 6, 1846, c. 89, § 4, and
But it had been settled by a series of decisions of this court that statutes of limitations, even in personal actions, including actions on judgments, were "laws of the several States" which, except where the constitution, treaties or statutes of the United States otherwise required or provided, must, under the Judiciary Act of September 24, 1789, c. 20, § 34, "be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." 1 Stat. 92; Rev. Stat. § 721; Beatty v. Burnes, 8 Cranch, 98; McCluny v. Silliman, 3 Pet. 270; Alabama Bank v. Dalton, 9 How. 522; Bacon v. Howard, 20 How. 22; Amy v. Dubuque, 98 U.S. 470. Statutes of limitation of personal actions are laws affecting remedies only, and not rights, as is clearly shown by the decisions that the only statutes of limitations applicable to such an action are the statutes of the State where the action is brought, and not those of the State where the cause of action arose. McElmoyle v. Cohen, 13 Pet. 312; Townsend v. Jemison, 9 How. 407; Walsh v. Mayer, 111 U.S. 31. It was thus established that statutes of limitations of the State governed personal actions in the courts of the United States. Otherwise, in the absence of Congressional legislation, there would be no limitation of the time of bringing any personal action in a court of the United States.
The statute of Wisconsin upon this subject, in force in May, 1872, was chapter 138 of the Revised Statutes of 1858, entitled "Of the Limitation of Actions," the material provisions of which are as follows:
"SEC. 1. Civil actions can only be commenced within the periods prescribed in this chapter, except when in special cases a different limitation is prescribed by statute."
"SEC. 14. The periods prescribed in section one of this chapter for the commencement of actions, other than for the recovery of real property, shall be as follows:"
"SEC. 16. Within ten years: 1. An action upon a judgment or decree of any court of record of any state or territory within the United States, or of any court of the United States."
The first sentence of the last section, declaring that the service of the summons shall be deemed the commencement of the action, is embodied in the statute of limitations, and is as clearly a part of it as the second sentence of the section, declaring that an attempt to commence an action by delivery of the summons to an officer with intent that it shall be actually served shall be deemed equivalent to a commencement thereof. The words "within the meaning of this chapter" were fitly inserted in the second sentence, in order to make clear the intent of the legislature that this sentence laid down a rule applicable only to the limitation of actions; and were naturally omitted in the first sentence, because the rule therein laid down accorded with similar provisions in a previous chapter, entitled "Of the Manner of Commencing Civil Actions," c. 124, §§ 1, 11.
The legal construction and effect of § 27 of c. 138, taken in connection with the preceding sections of the same chapter, is that the service of the summons, or its delivery to an officer with intent that it shall be served, is the act by which the period of limitation must be computed; and the definition of that act is an integral part of the statute of limitations, and as such applicable, as the rest of the statute undoubtedly is, to actions in the courts of the United States.
But in order to come within the second sentence of that section, requiring the summons to be "delivered, with the intent that it shall be actually served, to the sheriff or other proper officer," it does not appear to us to be necessary that
The defendant much relies on an opinion of the Supreme Court of Wisconsin, in which it was said that "the fact that the summons was not placed in the hands of an officer of the county in which the action was intended to be commenced would be fatal to the claim that there was an attempt to commence the action within the meaning of § 4240" of the Revised Statutes of 1878, corresponding to § 27 of c. 138 of the Revised Statutes of 1858. Sherry v. Gilmore, 58 Wisconsin, 324, 334. But in that case there was no service, or attempt to serve, except through the mail; and the court had not before it the question whether depositing a process in a place provided and designated by the officer was equivalent to putting it in his own hands.
In the case at bar, the testimony introduced by the plaintiff tended to show that the attorney filled out the præcipe to the clerk to issue the summons and filed the præcipe with the clerk on May 11, 1872, and immediately went to the marshal's office, one story above, in the same building, and told him there was in the clerk's office a summons in this case for service. The summons issued by the clerk bore date of the same day. The clerk testified that he presumed that the summons must have been made out on the day of its date, and knew nothing to the contrary; that his custom was to issue the summons on the same day the præcipe was filed, and he had no recollection of ever having neglected to do so; but had no personal recollection about this particular summons. He also testified that there was a box on a bookcase near the door in his office, where he usually placed such writs as were
Upon this testimony, the questions, whether the box in the clerk's office had been duly designated by the marshal as a place where processes to be served by him should be deposited, and whether the summons in this case was either deposited by the clerk in that box, or delivered by him to the marshal, within ten years after May 13, 1862, when the cause of action accrued, were not questions of law for the court, but questions of fact, which should have been submitted to the jury. The court therefore erred in not giving the instruction requested, and in directing the jury to return a verdict for the defendant.
Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.