BRADLEY SALT CO. v. NORFOLK IMPORTING & EXPORTING CO. OF VIRGINIA, 101 F. 681

MORRIS, District Judge (after stating the facts as above). This case involves the construction of

section 2984 of the Code of Virginia, as amended by Acts 1893-94, and as further amended in matters not affecting this case at the session of 1897-98, and which now reads as follows: “Sec. 2934.

Further Time Given; When Suit Abates, or is Defeated on Ground not Affecting the Eight to Eecover. — If an action, commenced within due time in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage; or if, in an action commenced within due time, judgment for the plaintiff shall be arrested or reversed upon a ground which does not preclude a new action for the same cause; or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in due time, or if in any pending cause, or in any action or suit hereafter commenced within due time in ally of the courts of this commonwealth, the plaintiffs proceed or have proceeded in the wrong forum, or bring the wrong form of action, or against the wrong defendant, and judgment is rendered against the plaintiff solely upon such ground, in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, or arrest, or reversal of judgment, or loss or destruction, or judgment against the plaintiff, but not after: provided, however, that the time that any such action or suit first brought shall be pending in any appellate court shall not be included in the computation of said year.” We are not aware that the points involved in the present case have been determined by any court of Virginia.

The case in hand is one in which the judgment of the court of law and chancery of Norfolk city was rendered against the plaintiff solely upon the ground that it had brought the wrong form of action, to wit, an action of covenant, instead of an action of assumpsit, and

section 2934 is applicable. ‘By omitting the parts not pertinent to this case, the

section may be condensed to read as follows: “Or if in any pending cause or in any action or suit hereafter commenced within due time * * * the plaintiff * * * bring the wrong form of action, * * * and judgment is rendered against the plaintiff solely upon such ground, In every such ease, notwithstanding the expiration of the time within which a new action or suit, must otherwise have been brought, the same may be brought, within one year after such * * * judgment against the plaintiff, but not alter: provided, however, that the time that any such action or suit first brought shall be pending in any appellate court shall not be included In -the computation of said year.” The plaintiff’s cause of action accrued January 1, 1892, and the five-years limitation expired January 1, 1897.

The plaintiff began its action of covenant in the court of law and chancery of Norfolk April 24, 1895, and the judgment against the plaintiff was entered November 27, 1895. The plaintiff waited until March 6, 1896, before it, by writ of error, took the case to the supreme court of appeals of Virginia. That court, on December 9, 1897, affirmed the judgment of the lower court, and the plaintiff then waited until December 8, 1898, when it brought this suit. The plaintiff contends that the year allowed him by

section 2934 in which to bring a new suit is one year from the date of the judgment against it in the appellate court, and that it brought this suit within one day of the expiration of the year. The defendant contends that the meaning of the

section is that the plaintiff had one year after the judgment rendered against him in the lower court, not including in the computation of said year the time during which the action was pending in the court of appeals.

The whole time from the date of the judgment against the plaintiff, November 27, 1895, to the date of entering the present suit, December 5, 1898, was three years and nine days, and the time the case first brought was pending in the appellate court was one year, nine months, and three days, so that, deducting that time, there remains one year, three months, and six days as the time which elapsed between the judgment against the plaintiff and the bringing of this suit. It seems to us that this method of computation precisely gratifies the words and meaning of the statutes.

The statute provides as plainly as language can express it that the plaintiff who loses his suit upon certain grounds not going to its merits can bring a new suit within one year, notwithstanding, it would otherwise be barred by limitations; and it further provides that, if he chooses to test the judgment given against him by an appeal, the time during which the appeal may be pending-in any appellate court shall not be included in the computation of the year.

The language and intention of the statute is so plain that we' can find no occasion for construction, and neither argument nor illustration can make it plainer. The plaintiff’s fourth replication averred that in 1896, which was within five years after the action accrued, the defendant corporation was dissolved, and that thereupon, under

section 1103 of the Code of Virginia, it became the duty of the said corporation to apply its assets to the payment of its debts; but, instead of so doing, it distributed its assets among its shareholders. It is difficult to comprehend how, in an action at law against a corporation upon a contract, it can be a good reply to the statute of limitations to simply aver that the corporation had, during the. running of the statute, been dissolved, and the assets distributed.

The theory advanced by counsel'for the plaintiff is that, upon the dissolution of the corporation, its assets became a trust fund for the payment of its liabilities, and the corporation a trustee for the purpose of distributing its assets and winding up its affairs. But this is' not a suit based upon the plaintiff’s right to participate in a trust fund. The plaintiff is not suing for the benefit of all the creditors. This is an ordinary common-law action against a corporation by which the plaintiff seeks to recover a judgment upon its own claim which accrued nearly seven ;pears before the suit was brought.

Section 1103 of the Virginia Code, as printed in plaintiff’s brief, gives no new right of action or remedy. It simply provides that, when any corporation shall expire or be dissolved, all its works and property, and debts due to it, shall be subject to the payment of debts due by it, and then to distribution among its members, and such corporation may sue and be sued as before, for the purpose of collecting debts due to it, prosecuting rights under previous contracts with it, enforcing its liabilities, and distributing the proceeds of its works, property, and debts among those entitled.

It makes provision for serving process upon such a corporation by publication. No provision is made with regard to the statute of limitations. There is, therefore, nothing in

section 1103 which creates an excéption to the statute of limitations when pleaded in a common-law suit such as this. We find no ground upon which plaintiff’s contentions can be sustained. Judgment affirmed.