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Opinion of the Court.
hold that such corporations are not exempt from the operation of limitation statutes, but that such statutes, at least as respects all real and personal actions, run in favor of and against these corporations in the same manner and to the same extent as against natural persons." In Evans v. Erie County, 66 Penn. St. 222, 228, Sharswood, J., says: "That the statute of limitations runs against a county or other municipal corporation, we think, cannot be doubted. The prerogative is that of the sovereign alone; nullum tempus occurrit reipublicae. Her grantees,
though artificial bodies created by her, are in the same category with natural persons." See also Dundee Harbour Trustees v. Dougall, 1 Macqueen H. L. Cas. 317. But we forbear to quote further authorities on the subject. We hold the doctrine to be well settled.
What may be the rule in regard to purprestures and public nuisances, by encroachments upon the highways and other public places, it is not necessary to determine. They are generally offences against the sovereign power itself, and, as such, no length of time can protect them. Where the right of property in such places is vested in the municipality, an assertion of that right may or may not be subject to the law of limitations. We express no opinion on that point, since it may be affected by considerations which are not involved in the present case.
The court below, in its opinion on the demurrer, suggests another ground, having relation to the form of the action, on which it is supposed that the plea of the statute of limitations in this case is untenable. It is this, that the action is founded on a statute, and that the statute of limitations does not apply to actions founded on statutes or other records, or specialties, but only to such as are founded on simple contract or on tort. We think, however, that the court is in error in supposing that the present action is founded on the statute. It is an action on the case upon an implied assumpsit arising out of the defendant's breach of a duty imposed by statute, and the required performance of that duty by the plaintiff in consequence. This raised an implied obligation on the part of the defendant to reimburse and pay to the plaintiff the moneys
Opinion of the Court.
expended in that behalf. The action is founded on this implied obligation, and not on the statute, and is really an action of assumpsit. The fact that the duty which the defendant failed to perform was a statutory one, does not make the action one upon the statute. The action is clearly one of those described in the statute of limitations. The case of Carroll v. Green, 92 U. S. 509, is strongly in point. That was a bill against stockholders of an insolvent bank to enforce their liability for double the amount of their stock, according to the provisions of the charter. It was held by this court, that the liability of the stockholders arose from their acceptance of the charter, and their implied promise to fulfil its requirements, and that the legal remedy to enforce it was an action on the case, to which the statute of limitations would apply; and, hence, that it applied to a bill in equity founded on the same obligation. To the same effect is the case of Beatty's Administrators v. Burnes's Administrators, 8 Cranch, 98, where an action for money had and received was brought, under the Maryland act of 1791, against a party who had received from the United States payment for land situated in the District, which land was claimed by the plaintiff to belong to him. This court held that, inasmuch as the form of the action was covered by the statute of limitations of Maryland, it could be pleaded in bar, notwithstanding the action was given by the statute of 1791. So, in McCluny v. Silliman, 3 Pet. 270, 277, it was held that the statute of limitations of Ohio was pleadable to an action on the case brought against a receiver of the land office to recover damages for his refusing to enter the plaintiff's application in the books of his office for certain lands in his district. It was contended that such a case could not have been contemplated by the legislature; but the court held that the action was within the terms of the statute, and that this was sufficient. Many more cases might be cited to the same point, but it is wholly unnecessary.
The judgment must be reversed, and the cause remanded, with directions to enter judgment for the defendant on the demurrer to the pleas of the statute of limitations; and it is so ordered.
Statement of the Case.
KNOX COUNTY v. HARSHMAN.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.
No. 1212. Argued October 15, 1889.- Decided October 28, 1889.
An appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect.
When an injunction has been dissolved it cannot be revived except by a new exercise of judicial power.
The prosecution of an appeal cannot operate as an injunction where none has been granted.
Although a bill to impeach a judgment at law is regarded as auxiliary or dependent, and not as an original bill, the supersedure of process on the decree dismissing the bill does not operate to supersede process on the judgment at law.
GEORGE W. HARSHMAN, on the 28th day of March, 1881, recovered a judgment by default in the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri against the county of Knox, in the State of Missouri, for the sum of $77,374.46 and costs, and on the 25th day of January, 1882, sued out an alternative writ of mandamus in the usual form, directed to the county court of said county and the judges thereof, for the levy of taxes to pay the same. To this writ, return was made on the 23d day of March, 1882, setting forth the reasons relied on by respondents as justifying their refusal to make the levy required. Issue was joined on this return, and upon a trial and verdict by a jury, October 11, 1883, the Circuit Court quashed the writ. Harshman brought the cause by writ of error to this court, which held the return insufficient, reversed the judgment, and directed the peremptory writ to be awarded. Harshman v. Knox County, 122 U. S. 306. The mandate went down on the 3d day of June, 1887, and a peremptory writ of mandamus was issued by the Circuit Court, commanding the county court of Knox County and the judges thereof
Statement of the Case.
to levy the tax as prayed, and was duly served June 28, 1887, but nothing was done in execution thereof.
On the 11th day of July, 1887, the county of Knox filed a bill in equity in the Circuit Court against Harshman, alleging various grounds upon which complainant prayed that Harshman be enjoined from further proceeding on his writ of mandamus, or prosecuting any other writ or proceeding upon said judgment requiring the levy of a special tax to pay the No preliminary injunction was granted, and the cause was finally heard on bill and answer at the September term, 1888, when the bill was dismissed and a decree rendered against the county for costs. From this decree the county prayed an appeal, which was granted; an appeal bond for $500, in the usual form, was duly given and approved; and the record was thereupon filed in this court in due time. On the 10th day of April, 1889, Harshman again sued out a peremptory writ of mandamus, to which the county made substantially the same return as to the alternative writ, but setting up the proceedings in equity, and insisting that the perfecting of the appeal from the decree dismissing the bill operated as a supersedeas of the judgment recovered March 28, 1881. Thereupon Harshman moved that said return be quashed, which motion was sustained, and the return quashed · accordingly, the district judge, who held the Circuit Court, delivering an opinion, in which he said: "When the bond for $500 was taken and approved the court advised counsel for respondents that it did not regard the bond for the sum of $500 as adequate to work a supersedeas, and it expressly declined to order that it should operate as such." The county then filed its motion for a rehearing of the motion to quash, and on the same day Harshman moved for an attachment against the judges of the county court for failing to obey the peremptory writ. The motion for rehearing was denied by the circuit judge, who also refused to stay the collection of the judgment.
The county, appellant in this cause, which is the appeal from the decree dismissing the bill in equity as before stated, now moves for a writ of supersedeas, requiring the Circuit
Opinion of the Court.
Court to quash the peremptory writ of mandamus of April 10, 1889, and restraining said court from issuing any other or further process in execution of said judgment, and commanding appellee to "cease prosecuting said peremptory writ of mandamus, and to surcease all further proceedings in execution of said judgment under the General Statutes of Missouri of 1866 until this cause shall have been heard and decided by this court."
Mr. James Carr for the motion.
Mr. J. B. Henderson, (with whom was Mr. T. K. Skinker on the brief,) opposing.
MR. CHIEF JUSTICE FULLER, after stating the case as above reported, delivered the opinion of the court.
Appellant's counsel contends that the appeal taken and perfected from the decree dismissing his client's bill of complaint operated, or should be made to operate, to supersede the judgment, in collection of which the peremptory writ of mandamus was awarded. That judgment was recovered on the 28th day of March, 1881, and no proceedings in error have ever been taken, and no bond given to supersede its operation. An alternative writ of mandamus was sued out, the cause shown by the county court and its judges against granting the peremptory writ was disposed of by this court on writ of error, and the peremptory writ was directed to be issued. The county of Knox then filed its bill in equity to restrain the collection of the judgment as commanded. No preliminary injunction was granted, and upon final hearing the bill was dismissed, and a decree passed against the county for
The general rule is well settled that an appeal from a decree granting, refusing, or dissolving an injunction, does not disturb its operative effect. Hovey v. McDonald, 109 U. S. 150, 161; Slaughter-House Cases, 10 Wall. 273, 297; Leonard v. Ozark Land Co., 115 U. S. 465, 468.
When an injunction has been dissolved, it cannot be revived