Opinion
March 10, 1927.
Edward H. Cumpston, of Rochester, N.Y., for plaintiff.
Percy R. Smith, of Buffalo, N.Y., for defendants.
In Equity. Suit by Farbwerke Vormals Meister Lucius Brüning against the Diarsenal Company, Inc., and Frank White, as Treasurer of the United States. On motion to dismiss bill. Denied.
The defendant's motion is to dismiss the bill upon the ground that one year had expired following the end of the war, wherein an action in equity, against the licensee, under the provisions of section 10(f) of the Trading with the Enemy Act (Comp. St. § 3115½ee), could be commenced. The bill of complaint admittedly was filed on Saturday, July 1, 1922; the process of subpœna issued by the clerk on July 3d, Sunday intervening; and delivery made to the marshal for service on July 5th, Independence Day intervening, while the service, on defendants, of the process was on July 6th.
Defendant's contention is that, since the period wherein the action could be commenced expired on July 2, 1922, the filing of the bill of complaint on the preceding day was not a commencement of the action within the intendment of the statute, and that, in fact, there was no commencement until the process was delivered to the marshal, with instructions to make service thereof. I do not agree with this contention, and hold that filing the bill was a beginning of the action and a reasonable compliance with the statute of limitations. Armstrong Cork Co. v. Amer. Refrig. Co. (C.C.A.) 184 F. 206. It is not implied, from the language of the statute, that issuance of process and delivery to the marshal were absolutely required within the one-year period. See Farmers' Loan Trust Co. v. Lake St. El. R. Co., 177 U.S. 51, 20 S. Ct. 564, 44 L. Ed. 667.
The principle of the last-mentioned case is not distinguished simply because there was involved therein the question of jurisdiction between state and federal courts, for it was plainly held that, as between the parties, jurisdiction attached on filing a bill in equity and issuance of process; and though, strictly speaking, the year expired on July 2d, and process was not issued until the next day, yet, as July 2d was a Sunday, the issuance of the process on the succeeding secular day was a proper compliance with the statute, especially as the process was promptly served by the marshal. In U.S. v. American Lumber Co. (C.C.A.) 85 F. 827, cited by defendant, there evidently was delay in issuing the process after the bill was filed.
Motion to dismiss denied.