# Respondents Brief — Custer v. McCutcheon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0042%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1931 - **Citation:** 283 U.S. 514 ## Text 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 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. 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- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0042%3A4. Public record. Not legal advice.