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CUSTER v. MCCUTCHEON

decided: May 18, 1931.

CUSTER
v.
MCCUTCHEON



CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

Hughes, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts

Author: Roberts

[ 283 U.S. Page 515]

 MR. JUSTICE ROBERTS delivered the opinion of the Court.

The respondent's predecessor, as United States marshal, on October 9, 1929, levied an execution issued September 21, 1929, out of the District Court of Idaho, against the petitioner, upon a judgment entered in that court March 7, 1921, in favor of the United States. On October 10, 1929, the petitioner filed a bill in the same court to restrain the marshal from proceeding further under the execution process, on the ground that § 6910 of the Idaho Compiled Statutes of 1919 permitted the issuance of execution only within five years from the date of rendition of judgment. The District Court, on motion of the United States, dismissed the bill, and the Circuit Court of Appeals affirmed its judgment.*fn1 This Court granted certiorari.*fn2

The question presented is whether the Idaho statute, which has been adopted as governing execution process in the United States District Court for that State, is applicable to an execution issued on behalf of the United States as a judgment plaintiff. The statute follows:

"The party in whose favor judgment is given, may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement."

It has become a part of the law of procedure in the United States court by virtue of § 916 of the Revised Statutes,*fn3 which provides:

"The party recovering a judgment in any common-law cause in any district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to

[ 283 U.S. Page 516]

     reach the property of the judgment debtor, as are provided in like causes by the laws of the State in which such court is held, or by any such laws which may subsequently be enacted and adopted by general rules of such district court; and such courts may, from time to time, by general rules, adopt such State laws as may be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise;"

and Standing Rule 73 of the District Court which is:

"Subject to the provisions of the acts of Congress in relation to executions, judgments in actions at law shall be enforced in the same manner as such judgments in the State Courts are enforced, and the State laws in relation to executions, sales, exemptions, rights of purchasers, right of judgment creditors and judgment debtors, redemptions, liens of judgments and of decrees and proceedings supplementary to execution as said provisions now exist or as they shall exist at the time in question are adopted as rules of this Court; and the Marshal of this Court shall conform his proceedings thereto; . . ."

As a result of § 916 and Rule 73, the Idaho statute is applicable to proceedings in the District Court as if it had been passed by Congress. In the language of Rule 73, it has been "adopted" as a rule of the court. While it is clear that it governs executions issued on judgments recovered by other litigants, the lower courts held that it does not apply to those sued out by the United States. This ruling is based upon the familiar doctrine that in the absence of specific provision to the contrary statutes of limitation do not bind the sovereign. The petitioner insists that this act is not in the ordinary sense of the term a statute of limitation, that it does not affect the time within which a suit may be brought upon ...


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