Respondents Brief — Custer v. McCutcheon

2 ; rai hs RS a 68.99 Fg o Offics Suipraina Cary U,

Sig PN LATS a RES Speen tele ate

peg PE ER od ed RP I AOL

‘ vant Ro onaeee | HARES. & cpa osad

P FILE COPY (2 ss

, & ss . . ’

= Ron B, ‘MoOvrontoy, ‘Subepervzes:. FOR FF, Me me

' BresHKars, Dpowasep, Unites ‘Staves “Mansa -

¥or THE Digraicr oF TpaHo . ey Skene

"ON weir ov. ‘OMRTTORARI' ro rai oNegep arars’ ouRourT.

“COURE O# -APPBALS FOR THE NINTH. orkourP

a.

INDEX

’ Page

BN DONOW oo a wha weneenccdcnucradscnesicsnunueeeen

ER SA MRS Mer IC. Nik LM Aik PL Wer, ae),

Semenmon presented... Oe, en) a

Statutes and rules of court tivallebcacc.. cs ae ae

i Statement... -__ ones gndmcteechusepadadeuc hen swag nes bas

PINS ooo ol Ll Uae! folie abies wet oe

ena uh do cncnoccwavorwavbcemoularduc eet ets 1

CITATIQNS :

oe —*

a meen Si Beli: OUR i i ei oe ee Ne

Armstrong v. Morrill, 14 Wall. 120)._..-.-._..... 11

Bolion.v. Lansdown, 21 Mo. 399..........-.2.-.--.-.-.. 7

Ches.'& Del. Canal Co. v. United States, 250 U. 8. 128 =~ 10

Coombs 'v. Jordan, 3. Bland’s Chancery (Md.) 284; 22 Am.

I TOs wdcicyh ce pidctinwewliae Ui ute Cae 7

’ Counties, In re, v. County of Alturas, 4 Idaho 14§......... 12-14

mm 6 -Femh Vv. O'Neil, 106 U. 8. 979.0 ee 16

* Gibson'v. Chouteau, 13. Wall. ashe sudeenuaroskednes all

Grand Trunk Western. Ry. Co. v. United Bates, 252 sas 8.

Ae disk dheashabinine dscnrle Sovlacpad Sueaes lod Go sbdatike iba 10

Livingston v. Paxton, 2 Utah Pee aaa IS a cbuieninwoies 9

Lucas vy. Pilliod. Lumber Co., POEs Ms MM a vesecdaawnce 10.

Mitchell v. Chesnut, 31 Md. Mba: iia db ins daha ts Sed ds is ates 7

Nimmo v. Commonwealth, 4 Hen. & M. 57; 4 Am. Deo. 488_. 7

Rhode Island v. Massachusetts; 15 Pet. 233... Gb i eas aceal ll

Swearingen v. United States, 11 Gill & Johns. (Md.), 873.... 16

United States v..Beebe, 127 U. 8. $88.22 .50585. noes hdobt + +10

. . United States v. Herpestion, 24 F. (2d) 7 Meena 16,17 «-

United States vy. Hoar, 2 Mason 5 Dey PLS NP Ba GR 9-10, 14-15

United States v. Insley, 180 U. 8. 263.......- da fodiliibintus ofthe 10

“United States v. Kirkpatrick, 9 Wheat. 720, Rea al Rail cad ae ae

Ufiited States v. Nashville, etc:, Ry. Co., 18 U. 8. 120.....-.. ° 10

_ United States v. Noojin, 155 Fed. 377; writ of error dismissed,

«164 Fed. 692; judgment affirined, 164 Fed. 1028........ 16

United States v. St. Paul, M: & M. Ry. Co., 247 U. 8.310... |

United States v. Thompeon, 06 0. BWR iene cwanei nc;

| Ulak Pr Li Ce v. United States, 243 U.8.380...-. 10

c Arizona Copper Company, OO Aas POG To eka. Re

bs . ravines 10 Witeat. bi snvqrpesegnwenia wanes i} 6

‘ 4 or. omesneca tasty: 18 Wall. duh ‘ 11 oe

ee mM. is be

. } ae ¥

’

a

sec. Di lpidotccndecnwikte

sec. BRB) oo nna encnnasoone

y sec. J4, 1 Stat. 72, 81....--.,

Act of September 29, 1789, ¢. 21/ Stat. 93...

Miscellaneous:

- 8 Cooley’s Blackstone, 24 ed., 419.

Idaho Compiled Statutes, 1919—

Sec. 6618, o. 260............-

~ 9 ee. RRM, @: SBF. cee cs és...

ii aita, iy, Pann ates eee Coen, D. Idaho... -...

“”

Sie gree an tite es

OcroBER TERM, 1930

PR aN web

No, 422

W. W. Custer, PETITIONER *

: * ° v. 5

_.. Ros B, MoCutoneon, Susstirvrep ror F. M. Bre-

shears, deceased, United States bcp ney for the -

pattie of re | -

ON WRIT OF, CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH GIRCUIT ~

_ BRIEF FOR THE RESPONDENT

. OPINIONS BELOW | ar

“The opinion of the District Court (R. 17) is sot

reported. The opinion of the Circuit Court of Ap-_

a bene, (R90) Je. repacted, in Al. (2d) 354.

JURISDICTION

The lel of the Circuit Court of ipa >:

was entered June 9,.1930. (R. 45.) “he petition —

_’ for certiorari was filed September 4, 1930, and was

“app Seater Poe" (R. 47.) obo

| (1)

oo } e-

4

- tion of this Court “he on ection oat a of the

- Judicial a as amends by the Agt of February

13, 1925. BS Se or

question PRESENTED |

ioe ee a writ of exécution may issue on a judg7

4, ‘ment for money entered in the United States Dis-

trict Court for the District of Idaho i in favor of the

| United States after‘a périod of five years from the __

- date of the entry of the judgment. . NS a

— AND RULES OF COURT INVOLVED

- +The abate and rules of court involved are set

forth in the discussion, of this case, infra. Sep

: ‘a scisendbies

j : On: March 7, 1921, ‘the ‘United. States recovered :

judgment against tile petitioner inthe United |

States | District Court for the District of Idaho, in’

the sum of $2,086.87... (R. 8.) On September 21, *

1929, a writ ofexecution was issued out of the Dis- |

trict Court upon this judgment: (R. 9), under which ©.

ye ‘execution the United States Marshal ‘on October el

1929, made a levy. upon moneys of the petitioner on ja

| - deposit in a bank at Shofhone, Idaho (R. 8). On a

“October. ‘10, 1929, the petitioner fijed a bill in the

Distriet Cqurt seeking. to-enjoin the Marshal from =

: withdrawing the moneys of petitioner $n deposit in ;

“the bank, and from applyia it to the satisfactien of 3

ee the judgment above described. The bill set forth >

_ +. the facts above stated and alleged ghat the judgment

ee i unenforeeable by: reason of the statute of limi-"”

ee tations, and that the execution issued thereunder |

Was void. (R. 7-11.) - A. temporary restraining |

\”~ order was entered by the District Court (R. 13-14), 5,

+ sand thereupon the Marshal nidved to distniss the -

¢omplaint upon the ground that it did not state

. sufficient facts to entitle the plaintiff to. the rellet .

Sey sought (R. 16).

_-. The District Court dismissed’ the octal ee

3 set aside the temporary’ restraining order. (R.20- .

2. 2 pon appeal to the Circuit Court. of Appeals

4 this: Judgment: was affirmed. (R. 45. és

= . ARGUMENT

On March 7, 1921, the United States recovered:

_ judgment epniael the petitioner for $2,086.87 i in the’

- United: States District Court for the District of

Idaho... The question presented is whether a writ

of execution may ‘issue on this judgment more than.

five years after the entry of the judgment, : ae

* . Section 6910 of the Idaho Commie’ Statutes of 2 ee

“1919 provides that—._- e : ones

The party. in whose favor jeteenpant is

given, may, at @ny time within five years

| after the entry thereof, have a writ of exe:

» ution issued for its enforcement. . Dit ae Hie:

~ Section 916 of the United States Revised Stat-

pone S.C. , Title 28, See. 727) provides that:

| The party: recovering a judgment in any

common-law cause in any circuit or district .

‘court, shall be entitled to similar remedies =

upon the same, by execution or oth ey

‘to — the — ~ _— jndgment :

Oe

\%

4 oes

oS

—*

a

- + debtor, as are now provided in like causes by

. . the laws of the State'in which such court-i8 ©.

held, or by any such laws hereafter enacted © .

_- which may be adopted by general rules of

~ guch_ eireuit or district court; and such

~~ gourts may, from ‘time to time, by general

Tules, adopt such State laws as may here-" |

'. after be in force in such State in relation

. to remedies: upon judgments, as’ aforesaid, :

_by execution or otherwise.

‘Rulé.73 of the United States District Court. for |

the District of Idaho, ecreeniiegs March 15, 1924,

= a2

* SS Vasa * he o | *

Subject to the rivikibihs of. the acts of <

‘Congress in relation to executions,- judg-

ments. in. actions at law shall be enforced in

the same manner as such judgments in. the

State Courts are enforced, and the State .

laws in relation to executions, sales, exemp- °

. tions, rights -of. purchasers, right of judg-.

ment creditors” and judgment. debtors, re-

- demptions, liens of judgments and of de-:

crees and proceedings supplementary to exe-

fe . -cution as said provisions now exist [or] as

_., they shall exist at the times in question are

adopted , as. poles of this Court; and the —

Mar

reto;: e * *

5 the petitioner contends that Section 6910 of the

upiled Statutes i not a statute of limita-*

4 tio ay creating rights, and that by Rule

ae) of the United States District Court for the Dis- =

_ trict of Idaho that court, pursuant to the ire

ax

—.

Court shall conform his pro-- -

5 Le ee

of Section 916 ofthe United States Revised Statutes, -

_ adopted Section 6910 of the Idaho Compiled Stat- ~

utes, and accordingly that no execution may issye

out of the United,States District Court for the Dis-.

trict of Idaho-more than five years after entry of °°

judgment, even though the United: States was

plaintiff in the suit. Upon this theory. the peti- |

' tioner seeks to avoid the application of the usual

” rule that the United States is not bound by, state

~ gtatutes-of limitation. It is to: be. noted that the

bill of complaint described ‘the statute as one of

-. limitation. (R. 9.) 3 :

he District Court, construing its own rule, held | ee

that Section 6910 of the Idaho Compiled Statutes | |

was a statute of limitations, that despite its Rale :

73, the United States was not bound by it, and that |

‘the United States should have execution more than i

._ five years after the entry of judgment. The Cir- :

cuit Court of Appeals reached the same conclusion. fe

_, Itis submitted that thé Jadament uf the court +e

ee low was clearly right> ey

‘The power of the Federal, courts to enforce their ee

judgments by writs of execution does. not come to ~

them from ‘any state. statutes, but was expressly ©

conferred upon them by Congress. The power to

issue writs of execution was originally conferred ©

"upon the Federal courts by Section 14 of the Judi-

lary Act ot As ce. 20, 1 | Stat. 81. asian

that—. | sie

att the- defo nientidned: courts of the’ :

- United> States, shall have power to issue.

oe since.the Judiciary Act. of 1789 the United States

aes @ . a |

writs of scire facias, habeas corpus, and all.

other writs not specially provided for by -

statute, ‘which j may be necessary for.the ex-

.. ereise of* their respective jurisdictions, and

_ agreeable to the git gilts and usages of |

! law, os

| This. Court said, in Wayman V, Southard 10—

‘Wheat. 1, at page 22:

The words of the 14th [section] are under-

stood by _ court to comprehend éxecu-

tions; * *. * ‘Oni the clearest principles; -

-of just hesalichad: then, the 14th section

of the judiciary act must be understood, as.

- giving to the courts. of the Union, respec-

; tively,’ a power to issue xeentions.o on their...

judgments. | 3

‘By a subsequent Act “to regulate processes in’ 3

the eourts of the United ‘Sta Bias Praeeqaiha-e se

-- gres provided that 5

until further | provision: shall +i made, and.

, . exeept where by this act, or other statutes

~-.. of the United States is otherwise provided, ee

the forms of writs and executions, except ——

their style, and modes of process *°* * as

in the circuit and district courts, in suits at oo

ae ~ ¢ommion Taw, shall be the same in each State

SE respectively : as are now used or allowed in -

és

we)

ae

‘the ‘supreme courts of the same; .

os This latter, provision as sibsequettly: modified a

‘ ¢ame Section 916 of. the United States Revised

Statutes quoted above. It appears, therefore, that -

é yrerecay Aye tats to issue Writs | of execution. |

-

.* and it does not depend upon state legislation.

ae Sr +3

- This ianwenn ‘was conferred upon them by: Caleta

_ At common law, writs of execution in favor of

private litigants were required to be sued out with- —

in a-year and a day after the entry of judgment. :

3. Cooley’s Blackstone, 2d ed., 419; Mitchell v.

Chesnut, 31 Md. 521; Bolton v. PRONE 21 Mo.

399. If not, the court would conclude prima facie

that the judgment was satisfied and extinct, but

even at common law writs of scire facias could be |

. granted to private litigants, after the expiration of: ‘Dk

" one ‘year, requiring the defendant to show cause —

Why, the judgment should not be revived../ 3

" Cooley’ 8 Blackstone, 24 ed., 419, But ut there: ‘was ae

no limitation upon the time-for the issuance of 4

s: writ of execution in favor of the crown, and no writ

of scire facias was necessary in order to enable the ,

- “erown to enforce a judgment in its faver. Coombs —

re | v. Jordan, 3 Bland’s Chancery (Md.): 284, 324; Be Ce’

22 Am. Dec. 236, 271. Anonymous, 2 Salk, 603.

In Nimmo v. Commonwealth, 4 Hen. & M. 51, ae

| 4 Am. Dee. 488, the Supreme Court of Appeals of

: __» Virginia applied the samie.rule in favor of the com- bos

.. monwealth. . The court below that this rule —

B —- &ppilied to executions in favor of United States

: in the courts of the United States. It seems clear

that as the United States succeeded 'to the favored *-

_. position of the crown with ‘respect, to statutes’ of —

ae limitation, this rule, which obtained at common law a

_* favor of the aio re Bee: be spptied fe

60880—81——2

&¥

wise e

i favor of the United States in the absence of some -

statutory limitation of the rule by Congress. There

is no provision in the: United States statutes which

in any way limits the time within which executions

. may bé issued in courts.of the United States upon

judgménts in favor of the United States... Con--

. gress has provided that executions upon judgments

in faver of-thé’ United States may run and be exe- :

———euted in any State or Territory, but that they shall

“es

be issued from and be returnable in the court where

the judgment’ was obtained. United States Re- .

| vised Statutes, Section 986. (U.S. ©., Title 28, Sec.

839.) This. shows an intent to give executions upon

- judgments in favor of the United States a larget : cE

‘scope than executions in favor of private. parties,

which ‘only run throughout the State in which ©

the District.Court: ‘rendering: the judgment ‘sits. .

“United . States . Revised) Statutes, Section 85.

/ es. Title 28, Sec. 838.) brealt cass

‘ Ef the:time within which executions thay: issue. a

on judgments. in favor of the United States i isigov- .

erned:by’ tlie. provisions: of ‘Section 6910’ of the

Idaho Compiled Statutes, this ‘could only be re

garded as a limitation upon a power of. the United

States District Court in Idaho, which is otherwise

' unlimited in time. | The effect and purpose of See- | if

“tion 6910 was to-enlarge the'time within which exe-

~ eutions ‘could be issued in favor of private litigants ©

- iaans courts from the yeatand‘a day/allow--

a law to five years. No intention 6

restrict the right of. the ey ig to have execu-

tion upon its judgments at any: time is expressed

“or to be implied. So far as private litigants are

concerned, the statute may well be a’ statute of

creation, but if applied to executions upon judg-.

ments in favor of the United States i in the United - 7

States courts, it must be regarded as a true statute

of ligiitetiona. It was so treated in petitioner’s bill.

(R. 9.). It Would be: equally a statute of lim-

itations if applied to executions upon judgments —

. of the State Idaho, Statutes limiting the time

-. within which executions may be issued have been

said to be statutes of limitation and- repose. ;

Livingston vy. Paxton; 2 Utah “81. Phi § is plainly.

’ .what they. are.

lt is a settled piicicis th that statutes of limita-

- tions in. general do not bind the, sovereign in. the

_ absence: of express progision that the limitation

shall. be. binding upon the sovereign. This is. be--

» gause of the maxim. quod, nullum tempus. accurrit :

regi, The reason for the maxim is stated. by J ustice :

| Story in Lnited States v. Hoar,.2 Mason 311, at

- >’. page 313, as follows: .. |

aa The true reason, inded: why. the. law Da *

bisths phi, fect that;there can be no negligenee .

ches imputed to the crown, an - there- i

po no. delay, should bar its right thot h

Se sometimes asserted td be, because the ting

_. ' is ‘always ‘busied for the’ publie good, and,

* "therefore, lias not léistire'to assert ‘his right

within the tines’ ee ee is: ake ee

‘ .

‘ o :

10

be found in the great public policy of pre-

serving the public rights; revenues, and prop-

erty from injury and loss, by the neg)igence |

of public officers. And though this is some.

: times ;éalled a prerogative right, it isin fact... '

- “ “nothing more than a reservation or excep- — +

nh oy ion introduced for the ‘public benefit, -and -

ually applicable to all governments.

This /principle has been frequently applied to the

‘ United States, and the rule is that no statute of

limitations binds the United States unless Congress _

* /has expressly provided that it should. Lucas v.

<. Pilliod Lumber Co., 281 U. 8. 245; Grand Trunk

/ . Western Ry. Co. ¥: United States, 252 U.8.112;-

" United Statgs v. StgPaul, M. & M. Ry. Co., 247

"-U. 8. 310, Nor is the United States bound by. the

: laches of its officers: Ches. & Del. Canal Co. v.

. United States, 950 U. 8. 123; Utah Power.& Light ©

‘Co. v. United States, 243 U. 8. 389; United States v.

Kirkpatrick, 9 Wheat, 720: In the absence of ex-

_ press Congressional authority therefor no state’

statute of limitation binds the “United- States.

. Ches. & Del: Canal Oo, Vv. ‘United States, supra;

United States v. Insley, 130 U. 8. 263; United —

State v. Beebe, 127 U. 8.388; United States v.

Nashville, ete, Ry. Co, 118 U. 8. 120; United —

States v. Thomps on, 98 U, 8. 486. sei

‘Tt would be 7 iblsinds doctrine, indeed, ‘for a a

-, United States, to be free to sue without regard to -

“state statutes of limitations and yet be barred by

ES te ‘The.

ll

very. . purpose of the exemption would thus be

defeated. |

Section 4910 of the Idaho. Aoavolied. Statutes

does not even limit the right of the State of Idaho

to obtain execution upon a judgment in its favor.

The State of Idaho is a sovereign within its bound- -

‘aries, and the usual rule that the sovereign is not

bound by statutes of: limitation (unless expressly

included) applies to it. Rhode Island v. Massa-

chusetts, 15 Pet, 233; Weber v. Harbor Commis-

- « gioners, 18 Wall. 57; sahanevele’. Morrill, 14 Wall.

| 120; Gibson v. Chouteaii, .18 Wall. 92. ‘ The inappli-

_cability of Section 6910-‘of ‘the Idaho Compiled .

Statutes to the State of Idaho, in a. suit in which

"that State recovers judgment, does not depend en-

.. tirely upon the application ‘of these general prin-_

_, ¢iples. Chapter 250: ‘of the. Idaho Compiled

Statutes of 1919 i imposes limitations upon the time —

- - for commencing civil actions, and in Section 6618 .°

of Chapter 250). there is an express provision

— ee:

The limitations ene oe ‘im this chapter

- apply to actions brought in the name of the

state, or for the benefit of the state, in the —

— manner as’ to actions by. cements |

(Italies ours.) apices

: dusted e010 of Me Idaho Compiled Statutes of 1919 |

a is not fou i athis chapter”’ (250) but in Chap-

ter 257, | id | 9 statutory provision impos-

| ing the limitation of Section 6910 upon the

_ state, ‘The Idaho courts have emphasized the -

= in Section 6618 which we have Htalinioed, and «|

ee i Hs » bal fils sr 8

Pa i <n

- have held in effect ‘that no limitations, other than

_. those found in Chapter 250, apply to the State of

Idaho or-its political subdivisions i in governmental.

matters. In Jn re Counties v. County of Alturas, 4

_ Idaho 145, after discussing the application of the

* maxim quod nullum tempus concurrit reg the court

bey 3 at page 151;,

It is a principle of the.common-law that the °

government—and therefore, by parity of -

reasoning, a county—can hot be guilty of . 4

“ Jaches. It is also well settled that a state is

_ not barred by a statute of limitations, unless

’ expressly named. (Madison Co. v. Bartlett

-- 1 Scam, 70; Bank v. Brown, 1 Scam. 107

_ Agents . of’ the county are not acting for

- themselves, but for the county, and there-

fore the county is not barred by their neg-

«leet. \ (Bank v. Brown, supra.) As respects

‘ -publie rights or property held for public _

use upon trusts, municipal corporations are

4. not within the wae of the statute of

; limitations ; ;

: __ The court also said, at, page 153: ae

bas It is contended that sections 4060 and 4061

.'« of the Revised ‘Statutes of Idaho make the

. ’ statute of limitations applicable to the state

Seicdenni ct inane of tae, tection

“be commenced,”

ee

Wiel 2 oer

Ps Mv

states, “An action fot rit pot herein

ting 0 yy to actions by

—

%

13 ey So

forcement of a)prfvate ‘Fight or correction -

of a private wrong, and therefore we must’

_ conclude that section 4060 refers:tijactions

~-., chapter, raph gt

.

of the same character which have n@t been

specially enumerated in the other setions.

It would seem to be clear that, if actio.rs of

a public ‘nature to enforce thé pe: lance

of a public duty or obligation were*intended

to be included ‘in. this section the legislature

would have said so, as this would include

. « actions of an entirely different nature from

those specified in the other sections of the.

construed, would include

a larg’ class of éases: of which nothing is

said in the limitation statutes, and which are

clearly not karred by lapse of time. We pan

not: thus undertake to, extend the statute, by .

construction, . beyond).what the legislature

seeni to us evidently to have intended. The

same is true with’reference to section 4061, .

The state, in the enforcement of a right.

- against private individuals, would-not ordi-_

narily be barréd, and not at all unless spé- -

cially named ; and therefore section 4061 Says .

(as amended) ::“The limitations ‘prescribed

» in this title apply to actions brought in the

state.’ ~ This section

oe _ name of the state, or for the benefit of the

; ; Bi 4 cal Sie 3 8] cif ally res iricted:

_ to the limitations tad in thle title”; —

rt - nature ‘ and ‘

ie

~~

oe”

.

3°

eee RASS. ‘ a gs é A

Ra eee 14

' statute, wa dhisatire bayou the iftention

of the legislaturd. -If the ‘e@ourt did’ this in

this ease, where a publje duty is inivolved_

and required, why may the court: not. be:

: . ealled upon to extend the statute to other -

duties and rights of a puhlic nature, which

_are not included, and not ‘intended +t to be in-.

cluded, i in the statute of limitations? - (Péo-

ple y: Melone, 13 Cal..574,, 15-Pac. 294.) .

“While there appears to be no. decision by the es |

Tdaho eourts dealing with the question of ‘whether oe

"or ‘not Section 6910 of the Compiled Statutes of ~

er would be Winding on the State of Idahoy this ©

age Se : B indicates 1 that the general rule that statutes:

~~ @f limitation do not: apply to. the State unless such

application is expressly provided for, is recognized

“and enforced in the courts of Idaho. |

Binge ‘itlis: clear’ that even the “State of Idaho’

° Gteelf. would not bé hound by-limitations, it is plain.

that such limitations upon the:issuance of execu- — 3

tions. could not’ apply to executions issued by the

" United States courts: uport judgments in favor of.

"e “the United States: Justice Story, in United States 2

. ¥. Hoar, supra, at: page 315, dealing with the appli-

cation to the United State@ of state statutes of smh

/ tation generally, stated the prinéiple succinctly:

i. big not to be presumed,.that 2 state lexi : 3

“ - _latuye.mean fo transcend their constitutional. Pa

|... ,, powers; and, therefore, however generai the -

words may be; they are always-restrditied

oo 4 oe persons and things, overt which the juris- .

‘, s:> dietion of the state baad be ray ex-

-?

oss ; toga eh AS ~

ae

€ ; a4 :

ht een le

erted. ‘ina if a construction could ever he

‘ec Justified, -which should include the United .

‘States, at the same time that it excluded the

State, it is not to be. presumed, that Con- <

gress could intend,to sanction an usurpation

of pqwer by a State to regulate and control »

“ the rights of the Untted States. - In the lan-

guage of the act of 1789, it would not be &

case, where the laws of the state could apply...

{The inischiefs, too, of sucha construction,...

uld be very great.- The publie’ rights,

é revenue, ‘and property would be subject:to.

~ the arbitrary limitations of the state; and

- the limitations are so various in these states,

aS: that the government would hold their a

‘by a very different tenure in each. *

‘It may perhaps be answered that in the instant ‘

2

ease there can be no question of power because: |

< Congress has adopted the state statute. R.S 916.

~ We contend that thie adoption by the United: States

_ of a state statute of limitations expressly made ap-

plicable to the State, can not be construed ; as a lim-*

- itation , upon the-soyereignty of the United States.

unless the adoption is by Congress. and some

has: by the terms of the adoption expressly pro-_.

vided that such statute of limitations ‘shall also.

bind the United States. : But even if this were not:

* 80, certainly a state statute, not intended as a limi-

“tation upon the sovereign which. enacted. it, cant

not be a. limitation upon’ the soyereign which

me “adopts it. If-the State : was excepted from its pro-

: visions eke United. gee was oxy ah excepted When.

“a

?

e

saad

16.

- its application to prienta litiesnta; was etteinind by

statute to the United States courts without express

. provision that it Should: apply to executions upon ~~

judgments vered by the United States. ae

‘Such decisions as there are dealing with the

question involved in ‘this case indicate that limita-

‘tions on’ the issuance. of executions contained in

- - state statutes do not apply to executions upon judg-

— of Wisconsin, and concluded that the State Would

ments in favor of the United States. United States —

oy Noojin, 155 Fed. 377 (8. ‘D.*Ala. ), writ of error a

és dismissed, 164 Fed. 692, judgment affirmed, 164

Fed. 1023: Villescas v. Arizona Copper Company,

20 Ariz. 268; Swearingen v. United. ates, il Gill i

& Jobns, (Md.) 373. |

In petitioner’ S brief in support of the petition

- for certiorari (which. he also submits. on the: —

: merits), the petitioner relied principally upon - |

Fink v. O’Neil, 106 U. 8.272, and United States

A Harpootlian, 24 F. (2d) 646. These cases are -

clearly. distinguishable and do not govern here.

The sole. question in Fink v. O’Neil, supra,.was_ t

3 ‘ | : whether or not the homestead of a judgment debtor - 3 §

Was subject to seizure and sale by authority of an

execution sued out on.a judgment recovered by the : :

United States i in a civil action in a Federal. court a

__ sitting ‘in Wisconsin, under the provision of the =

~ Wisconsin statute exempting homesteads from seiz-

ae ure and sale. on execution. At the outset of the @e-

cision this Court considered whether the exemption 3

= would prevail as to ) judgments i in favor of the State

at

17

in suits by the United States. There is some lan-

“guage dealing with executions generally, but this .

was obiter, and we submit that the basis of the deci-

-- sion was the narrow one indicated above. As we

_ havé'shown, the State of Idaho'is not bound by the .

_ limitations contained in,Section 6910 of the, Com-. |

. piled Statutes of Idaho, and for the reasons indi- —

: cated, the United States is riot bound thereby.

In United States v. Harpootlian, supra, the Cir-- a

cuit Court of Appeals for the Second Circuit held:

that the statute of the State of N. ew York limiting

sg the duration of a judgment lien to ten years was . :

ae . binding upon.the United States. The court in that

ease, however, pointed out that judgments were not.

aes liens upon real estate at common law, and thata

es = jldgment i in favor of the United States could only

-- bea lien upon real estate in the State of New York |

_, . by virtue of the state statute. Having adopted the _ oe

statute, the United States had to take the limitation eee

Upon the duration of the lien with the benefits of

' the lien conferred by the state statute, We are

limited a’ right which it did not, and could not,

be.bound by the exemption, Construing the Wis- ~

_ ‘consin statute as exempting homesteads from seiz-

ue under an execution: issued in favor of the State,

.° this Court held that the adoption of the Wisconsin.

law by the Conformity Aet, operated as an exemp- —

tion of homesteads from seizure on execution, even

not dealing in this case with a right conferred by a 8

state statute, but with the claim that the State has

. epi for the right to issue execution already re-

SPOR eee

: sided’ in ‘the United Stata’ courts. viithidat: side 4

“itation. ‘This unlimited right of the United States, _

nee.

asa sovereign, which has not been expressly lim- a

ited — the —— itself, ‘continues to. exist. ;

‘CONCLUSION : ‘ ne

. It is , respectfully - submitte that. the judgment E

of the Circuit: ‘Court of Appeals below should be

¢>

vious ©. THACHER, is Z -

’ Solicitor General.

' Sern W. RicHARDsoN,

. Assistant Attorney General.

Oraupe R. Branon, _.

Special Assistant to the Attorney General.

dl ‘Wurtny Norra ‘SEYMOUR,

‘ELT. Borxz,

Aieamegs.,

be |

Ske ve ys

é ; Be * -

es eS \ \ ‘ ;

k se . : :

Sen ie: oe Mey ak

x “e ee ee ee #2

¥ $ ' i

F ; - eee : we 4 | fi =

; oe Ty ke yes Bee

us SerqueeNe gn PO