# Stewart v. Kahn

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United States Supreme Court
78 U.S. 493
Stewart v. Kahn
ERROR to the Supreme Court of Louisiana; the case being thus:
On the 10th August, 1860, Bloom, Kahn & Co., of which firm one Levy was a member, all parties being resident traders in New Orleans, gave their promissory note to A. T. Stewart & Co., resident traders of New York, payable March 13th, 1861. Payment was refused on demand at maturity. Very soon after this, that is to say, in April, 1861, the late rebellion broke out, and from the 15th of that month, when its existence was announced by proclamation from President Lincoln, until some time after, May 4th, 1862, at which date the government troops took possession of New Orleans, the ordinary course of judicial proceedings was so interrupted by resistance to the laws of the United States, that none of the defendants could have been served with process if suit had been brought on the note against them.
On the 11th of June, 1864, Congress passed this act, entitled 'An act in relation to the limitation of actions in certain cases:'
'That whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person who by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process for the commencement of such action or arrest of such person—
'Or whenever, after such action, civil or criminal, shall have accrued, such person cannot by reason of such resistance of the laws, or such interruption of judicial proceedings, be served with process for the commencement of the action—
'The time during which such person shall be beyond the reach of judicial process shall not be deemed or taken as any part of the time limited by law for the commencement of such action.'
On the 16th April, 1866, the Federal courts being now re-established in New Orleans, Stewart & Co. sued Bloom, Kahn & Co. on the note. These set up what is called in Louisiana 'the prescription of five years;' equivalent to that which is elsewhere known as a statute of limitation, barring an action after five years. No replication to this plea was put in. The Code of Practice in Louisiana bars replications generally. This code enacts that
'When the defendant in his answer alleges on his part new facts, these shall be considered as denied by the plaintiff; therefore neither replication nor rejoinder shall be admitted;'
And by the settled practice of the State what was embraced in the defendants' answer was open to every 'objection of law and fact the same as if specially pleaded.' The plaintiffs therefore were to be considered as denying the validity of the State statute of prescription which the defendants had set up in their plea, and as declaring that in virtue of the act of Congress above quoted it was suspended by the rebellion.
The court in which the suit was brought gave judgment for the defendants. The plaintiffs then filed a petition in the Supreme Court of Louisiana for a rehearing of the case, and, among other things represented in the petition, that in the court below
'They mainly relied upon the act of Congress entitled 'An act in relation to the limitation of actions in certain cases,' approved June 11th, 1864, as a complete answer to the plea of prescription set up by the defendants.'
The petition for rehearing also declared that the plaintiffs had filed a written brief in the said District Court, which the rules of that court required them to file, setting out the said act of 1864. This petition was inserted in the record.
The Supreme Court of Louisiana affirmed the judgment in the court below, in these words:
'This is an action upon a promissory note. The defendants pleaded the prescription of five years. The note fell due on the 13th of March, 1861, and the citations were served on the 18th day of April, 1866. More than five years having elapsed after the maturity of the note before the citations were served on the defendants, the plea of prescription must be sustained. It is therefore ordered, adjudged, and decreed, that the judgment of the lower court be affirmed, and that the appellant pay the costs of the appeal.'
The plaintiffs now brought the case here.
Prior to the 5th of February, 1867, there was but one enactment on the subject of bringing judgments from the Supreme Courts of States to this court, the well-known 25th section of the Judiciary Act of 1789. On the day first above mentioned, however, Congress passed another act on the subject; following, in most respects, the language of the old act, though changing it in some places and leaving out one whole clause in the old act. The important parts of the two acts are here set out in parallel lines; words in the act of 1789 omitted in the act of 1867 being inclosed in brackets, and words variant in the two enactments being put in italics: Judiciary Act of 1789.
'SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court [of law or equity] of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such [clause of the said] Constitution, treaty, statute, or commission, may be re-examined and reversed, or affirmed in the Supreme Court of the United States upon a writ of error, . . . in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a Circuit Court. [But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the beforementioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.'] Judiciary Act of 1867.
'SEC. 2. And be it further enacted, That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission [or authority], may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error . . . in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States.'
The case being now in this court, two questions were made:
1. Of jurisdiction in this court.
2. Assuming jurisdiction to exist, the correctness of the judgment below.
Mr. E. T. Merrick, for the dismissal, and in support of the ruling below:
It is said in the brief of the opposing counsel, that in the Supreme Court below the plaintiffs set up and insisted upon the act of Congress of 1864, as a bar to the prescription. We remember no such fact. The matter must be decided by the record. Certainly there is nothing of record to show that any question respecting the statute of limitations of the United States of June 11th, 1864, was raised or relied upon before the Supreme Court of Louisiana, as a ground of recovery. Although the act of 1867 is broader than the act of 1789, it must be construed with it; and thus construed there is nothing which contemplates a writ of error for any other matter or thing than that which appears on the face of the record. It was not the intention of Congress by the new act to create any new method of trying cases in error.
A petition to the Supreme Court stating that a particular statute was relied on in the inferior court, does not prove that it was so relied on; still less does it prove that it was relied on in the court above.
Moreover, if the writ is to have the same effect under the act of 1867, 'as if the judgment or decree complained of had been rendered or passed in a court of the United States,' it will not benefit the plaintiffs in error, because if this case had been tried in the Circuit Court of the United States, in the absence of bills of exception, there is nothing on which to base an examination of the question; much less to reverse the judgment of the lower court.
On the merits: The act of Congress of 1864, in relation to the limitation of certain actions, was meant to bind the courts of the United States alone. This is to be inferred, because as will be conceded, there is no grant of power in the Constitution of the United States to Congress, to prescribe rules of property or practice for the government of the courts of the several States, and because as to matters not intrusted to the government of the United States, the State courts are considered as courts of another sovereignty. As Congress cannot create the State courts, as it cannot establish the ordinary rules of property, obligations, and contracts, nor in general, denounce penalties for crimes and offences, in the several States, it cannot prescribe rules of proceeding for such State courts.
On the other hand, there is no inhibition in the Constitution of the United States upon the individual States to pass statutes of limitation even where such statutes of limitation bar the judgments of sister States.
The act suspended the statutes of limitation, in the cases given, both as to crimes and civil actions. This shows that Congress was legislating for the courts and officers of the United States, over which it has jurisdiction; for certainly a State could not bring a writ of error to this court, to reverse a judgment of its own courts, which should hold that a criminal offonce was barred by the statute of limitation, notwithstanding the impossibility of arresting the offender, for the cause assigned in the statute?
If our view of the purpose of Congress is not correct, then we deny the power of Congress to pass such an act. If Louisiana was a State of this Union (and this court has not failed to consider it as such, as is shown by the numerous writs of error which it has allowed to the State court, and considered), Congress could not constitutionally repeal or suspend State laws, or any subject-matter reserved to the States.
Mr. S. M. Johnson, contra:
Under the peculiar practice of Louisiana, it is next to impossible to raise in the pleadings constitutional or legal questions. The plaintiffs had a right to urge any denial whatever to the plea of prescription of the defendants, the same as if it had been set up in replication. The statute of prescription must be pleaded, because the law itself makes it optional to invoke it or not; but the question whether such statute is in force or has been suspended, or whether it exists at all or not, may be raised by the plaintiff, without spreading upon the record his grounds of objection.
The defendants pleaded a law of that State, and it was clearly the duty of the court to decide upon the validity of that law. They did decide that it was valid, when confessedly it was not valid. That was their error, and it was an error which deprived us of essential rights, the enforcement of which we had invoked in the courts of Louisiana, and which we are here to insist upon.
Perhaps, therefore, even under the Judiciary Act of 1789, and even if there were no petition in the record showing that the matter turned on the act of 1864, this court might have jurisdiction.
But the petition which is made part of the record does show specifically 'the before-mentioned question of the validity or construction' of a statute of the United States; to wit, the said statute of 1864. We are thus brought directly within the language even of the act of 1789:
'Where is drawn in question the validity of a statute of any State, &c., . . . on the ground of their being repugnant to the laws of the United States, and the decision is in favor of such their validity.'
But this proceeding in error is instituted under the act of 1867, which is in addition to and amendatory of the act of 1789. The act of 1867 makes a material change in the law of 1789. All that part of the last-named act which required that the matters involved in the case must have been discussed and decided upon in the lower court, and must appear of record, is omitted in the act of 1867. The requirement, that questions raised shall appear of record under the act of 1789, was intentionally omitted from the act of 1867, to meet the contingency of a case like this, where the State judges manifestly intended to defeat an appeal to this court by refusal to notice the questions raised in the pleadings.
As to the merits, the case is completely settled by Hanger v. Abbott, itself acted upon and in effect affirmed by The Protector.
Mr. Justice SWAYNE delivered the opinion of the court.

## Notes

* ↑ See The Circassian, 2 Wallace, 141.
* ↑ 1 Stat. at Large, 85.
* ↑ 14 Ib. 385.
* ↑ Medberry et al. v. The State of Ohio, 24 Howard, 413.
* ↑ Ableman v. Booth, 21 Howard, 516.
* ↑ McElmoyle v. Cohen, 13 Peters, 328.
* ↑ 6 Wallace, 532.
* ↑ 9 Id. 687.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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