Hawley v. Griffin

Weavhr, J.

Plaintiffs are the children and heirs at law of John'Irwin, who died intestate October 20, 1893. The general outline of the controversy is as follows: Mr. Irwin, who had been a country merchant in Ohio prior to the year 1856, came west about that time, bringing with him a large'number of soldiers’ bounty land warrants, of which he had obtained assignments, and by which he secured title to several thousand acres of land in Iowa, including the tracts in controversy, and a still larger area in Nebraska. In the year 1865, the lands now in suit were sold for the unpaid taxes of the years 1858 to 1864, inclusive, and in 1871 were again sold for the unpaid taxes of 1870, and upon these sales treasurer’s deeds were made to the purchasers. Thereafter each of the holders of the tax title to the several tracts of land in controversy brought action in the Olay county district court to establish and quiet said title in themselves, each making John Irwin a party defendant. Service of original notice in each instance was had upon Irwin in the state of Nebraska and, he making no appearance, default and decree as prayed was rendered against him more than a year prior to his death. The claim now asserted by the Irwin heirs against the tax title is that from a date prior to the tax sales down to the time of his death their said ancestor was insane and wholly irresponsible, and that the tax sales, treasurer’s deeds, and the decree of the district court confirming and quieting such title are void and without any effect to devest the title of Irwin. As we have before stated, Irwin died October 20, 1893. The petitions in each of the six several proceedings involved in this appeal were filed October 20, 1894. On the same day original notice in each case was placed in the hands of the sheriff of Olay county, with intent that the same be promptly served. Actual service of such notice was had on the same day in cases 572,1,695, and 2,326, but in each of the other cases service was not effected until a later date. The owners of the tax title deny the alleged insanity of Irwin, deny that there were any erroneous or irregular proceedings in obtaining the decrees quieting their said tax title, and allege that, even if the allegations of insanity be established, the actions to redeem from the tax sale and the proceedings for a new trial were not begun within one year from the death of Irwin, and are therefore barred by lapse of time.

i. incompetent owner: right of heirs to redeem: incompe-°f tency. I. The story of John Irwin’s life, as disclosed by the testimony, is an extraordinary one, but the record is by far too voluminous to attempt a detailed rehearsal of the facts. As is usual in such cases, there is a . large array or witnesses on either side, and . opinions expressed by them as to the mental condition and capacity of Mr. Irwin during the period from 1861 to his death, in 1893, are more or less irreconcilable. We have read and re-read the record with much care, and after comparing the testimony of all those who attempt to speak upon this subject; their apparent intelligence; their personal acquaintance with Irwin; their opportunities to observe his demeanor, conduct, and appearance; the degree of their intimacy with him; the facts which they relate as the basis of their opinions; and all other circumstances disclosed which tend to affect the weight and value of their testimony, — we think the following history, stated in outline, is clearly established. John Irwin, living in Ohio until middle life, was evidently a pushing, thrifty, intelligent, and prosperous business man. Those who knew him there describe him as of pleasing address, peaceable, quiet, cheerful, and attentive to his own affairs, though somewhat peculiar in his methods. Evidently of a careful and saving disposition, he accumulated what in those days was counted a competence. There is nothing to show that during this period of his life he failed to pay his taxes, or was wanting in due respect to the law or to law officers, or was anything other than a good and orderly citizen. About the year 1856, as is commonly known, there was much speculation in soldiers’ bounty land warrants, then recently made assignable. Apparently Irwin became infected. with the speculative fever, and converting his means largely, if not entirely, into land warrants, he came West, and ultimately took up his home in Nebraska Oity; living there until he died, in 1893, at the advanced age of 94 years. Soon after his arrival from the East, he located his-warrants, and obained title to lands to an aggregate-amount estimated at from forty-five thousand to fifty-five thousand acres. *

About this time there was developed a marked change-in the man’s characteristics. Always saving, he became miserly in small things, but the princely domain which a. keen business instinct had led him to acquire he allowed to slip from his grasp without an intelligent effort to save-it. He denied the power of the state to tax his lands, or to sell them in satisfaction of tax liens. The subject of taxation excited him to frenzy of anger. He gave no clear or consistent idea of the theory upon which his opposition to taxes was based; sometimes declaring taxation to be unconstitutional, but more often that it was a scheme- or conspiracy undertaken to rob him. Sometimes he called himself “Lord Irwin” or “Earl Irwin,” and said his property could not be taken. His property, and the schemes of others by which he was being robbed of it, were ever in his mind, and the slightest touch upon the subject would cause an explosion of his wrath. Indeed, he did not wait for any one to broach the subject, but forced it into every discussion, whether relevant or irrelevant. He gathered crowds about him in public places and delivered harangues upon the subject of his wrongs, and rode up and down the streets shouting his grievances and vituperating his sujjposed enemies. He haunted the courts with great regularity for years, taking his place within the bar, and persistently interrujited proceedings to demand some order or some relief against those whom he believed arrayed against him. At times, when compelled to be a silent spectator of the proceedings, he would compliment a ruling which pleased him by arising and “making a courtly bow” to the presiding judge. When an officer visited his place with a writ, he assaulted him with a deadly weapon. In 1861 a horse of no great, value belonging to him or to his wife was seized by the provost marshal (Judge Mason) for military use, but was soon returned uninjured. Conceiving this to be a great wrong, he prepared an itemized bill of the damages he claimed to have sustained. This bill, made out with great care, and consisting of separate items for the use of his horse, a broken hinge on his barn door, loss of hay crop, mental anxiety, loss of comfort in being deprived of the use of the horse for exercise, and numerous others of like fanciful .character, aggregating over $9,000, he repeatedly sought to have collected by proceedings in the state and federal courts. Taking it then before the legislature session after session, he was tireless in waylaying members and importuning them with apparent sincerity to support his claim. This one topic seems to have been the only thing which in his mind could rival in importance the general subject of taxation and robbery. The bill spoken of, or some document in reference to it, was ever in his pocket and ready to be brought forth and displayed to any one who would listen to him, or to be called to the attention of the court whenever permitted to interrupt its business for that purpose. He became vslovenly in his person, went thinly clad in the .most inclement weather, and at times appeared upon the street in attire too scant for decency. His talk was disconnected, his eye wild, and his voice loud, harsh, and imperious. He collected in trunks and boxes large quantities of scraps of paper, of no apparent use or known purpose, He refused to pay the taxes upon his home, and the title thereto was saved only through the intervention of friends in the interest of his wife. Though making no effort to pay taxes, and seeing his property sold therefor, he refused all offers to purchase the equity left in himself. _ When served with notice of the suits brought by the defendants Griffin and others in Iowa, he gave the matter no attention. Steadfast and consistent in the idea that there was no power to tax his property, and that his title could not be lost, he went to the end of his long life without any apparent comprehension that he was imperiling the magnificent heritage to acquire which for his children he had given the best years of his life.

On the other hand, it is shown that in some respects he was not without shrewdness and intelligence. He was close and parsimonious in his purchases, haggling over prices and getting good bargains. Money he clung to with tenacity, and at his death had several thousand dollars in the bank. There was some evidence tending to show that two of his brothers and a grandchild were of unsound mind. Of the witnesses expressing an opinion of his mental condition, we think it must be conceded that a large majority of those who had known him longest and best — some of whom had known him intimately from the time of his arrival from Ohio — testify in unqualified terms that they believe him to have been insane from before the date of the tax sales to the day of his death. Among the witnesses testifying for the defendants, some, show but slight and casual acquaintance with Mr. Irwin in his life time, while many of those who knew' him better speak upon this subject in a guarded and qualified manner, and, while saying in a general way that they regarded him sane, add that he was “peculiar,” “cranky,” “eccentric,” “a little off,” etc. Of the physicians testifying in the case, six, who appear to be men of the learning and ex' perience which give weight and value to their statements, and the only expert witnesses who speak from close acquaintance and observation of Mr. Irwin, say unhesitatingly that he was insane, — 'the victim of monomaTiia upon the subject of taxation and property rights None of these spoke in answer to hypothetical questions, but from personal knowledge and observation of the man. Two medical witnesses were called by the defendants,-but the acquaintance of neither with Irwin was close or intimate. The expert testimony, therefore, like that of nonexpert witnesses, preponderates largely in favor of the theory of insanity. The test of mental capacity is said. to be whether the person possesses sufficient mind to understand in-a reasonable manner the nature and effect of the act in which he is engaged. English v. Porter, 109 Ill. 285; Bond v. Bond, 7 Allen 1; Wilkinson v. Sherman, 45 N. J. Eq. 413 (18 Atl. Rep. 228); Wright v. Jackson, 59 Wis. 569 (18 N. W. Rep. 486). It is also said that, ‘‘as a result of medical research, it is now well understood that a man may be thoroughly insane on one subject, and at the same time be capable of transacting business on all others.” 16 Am. & Eng. Enc. Law (2d Ed.) 624.

We think it hardly possible that, applying these rules, any disinterested person can read the evidence in this case, and say that John Irwin was not “thoroughly insane” on the subject of property and taxation, or that he had sufficiently sound mind '“to understand in a reasonable manner the nature and effect” of his conduct in reference to such matter. In view of the long period that h^s elapsed since, the tax sales upon which defendants’ claim of title is based, and the possible hardships resulting to those whose intervening rights have been acquired without notice of the defect in such titles, we have been reluctant to reach this conclusion; but, without a palpable disregard of the clear and satisfactory preponderance of the evidence, we cannot do otherwise than say that the alleged insanity of John Irwin has been fairly established. It is useless, perhaps, to speculate upon the cause of this condition. -It is not an improbable theory that in his' eagerness to acquire land he made the mistake of investing his entire capital in the large purchases made by him, and then, finding himself unable to meet the naturally large aggregate demand for taxes, the worry and anxiety thus occasioned, and the fear of losing the land in which his fortune was locked up, may have produced the mental disorder which clouded all the rest of his life. It is a matter of common knowledge that the years immediately following 1856 were years of depression and discouragement, in which many men of property were put to sore trial. That insanity should in some cases follow such experience is not a matter of surprise. There is no direct evidence upon which this can be said to be true of Mr. Irwin, and it is mentioned only as a theory which the revealed facts of his history make plausible. We are not concerned, however, with the cause of his mental aberration. It is the fact of its existence which is material, and that, as we have said, is established by the evidence.

2. vacation of cLccrsG against in-guardianship. II. Concerning the insanity of John Irwin as alleged, do the decrees quieting defendants’title against his claims operate to conclude him or his heirs? The arguments of counsel are notable for the industry displayed in the marshaling of authorities, and the' skill and ability with which they are presented for our consideration. If we were required to decide the dispute solely upon the precedents, or as a matter of right, independent of the statute, it would be by no means free from doubt and difficulty. It is unquestionably true, however,that from very early times the property rights of .children and lunatics have been favored in law, and the courts have regarded such persons as their wards, whose-interest should not be sacrificed to mere technicalities, or be allowed to suffer prejudice by reason of their helpless or irresponsible condition. Keeping that just and humane purpose in view, the legislature has attempted to provide certain and definite laws by which the rights of such wards may be preserved. Referring to the Code of 1878, which was in force at the time of the proceedings now being reviewed, we find that by sections 3154 to 3162 a means is provided to open up and vacate judgments erroneously entered against a minor or person of unsound mind. But it is contended by appellees that the proceedings sought to be vacated in the present instance cannot be properly deemed erroneous, and therefore no relief can be granted plaintiff under the provisions referred to. It is conceded that Irwin did not appear to the suits to quiet title; that no guardian appeared for him, none was appointed to defend his interests, and his default was entered and the decrees taken without any cognizance of his alleged mental unsoundness. Appellees’ theory is based upon section 2570 of the Code of 1873, which provides that “the defense of a person judicially found-to be insane, or of one confined in any state hospital for the insane, who by the certificate of the physician in charge appears to be insane, must be by guardian,” from which language it is argued that as the insanity of Irwin had not been judicially established, and he was not confined in any state hospital for the insane, there was no occasion for the,appointment of a guardian to defend for him, and therefore no error in rendering the decree.

We cannot accept this as the correct construction of the statute. The section quoted provides, in effect, that a judicial finding of insanity, or the certificate of the physician in charge of a defendant confined in a state hospital, shall be taken as conclusive evidence of his mental irresponsibility, and that whenever such evidence is produced the court must require defense to be made by guardian. Bnt suppose there has never been any judicial inquiry into a defendant’s mental condition, and no confinement in hospital, but he is himself personally in the presence of the court, and it is apparent ata glance that he is a hopeless maniac or idiot; can it be that the court would be justified in ignoring the patent fact of such defendant’s helplessness, and that a default and decree so rendered, devesting; him of title in his estate, is not erroneous? If such a decree is open to question, is it less so when rendered against one who is equally incapable of protecting his own right, but is not directly under the eye of the court? The letter of the law does not require, and its spirit forbids, any construction which works such manifest injustice. Indeed, it would seem that it is for just such cases as last supposed that this statute is more especially enacted. Where the fact of insanity is brought to the court’s attention by reference to a judicial finding or physician’s certificate, then the mental condition of the party, as well as the error in failing to require appearance by guardian, “appear in the record” (Oode 1873, section 3154), and the correction must be by appeal. Where, however, the fact of insanity exists, but is not brought to the attention of the court, “and does not appear in the record,” a judgment by default, in our opinion, involves error, within the meaning of the statute. Wise v. Schloesser, 111 Iowa, 16. In order for an insane or infant defendant to have the benefit of this statute, it is not necessary that the judgment from which relief is sought be void, A void judgment may be vacated or its enforcement enjoined by a suit in equity. The decrees obtained by the defendants quieting their title are not void. There was an error in their rendition, but no fatal lack of jurisdiction in the court. The statute simply provides a method by which that error may be corrected by the trial court, and a failure , to demand such correction within proper time after the removal of the disability leaves the decrees unassailable. In our view, Therefore, the heirs were entitled, upon proper showing made within the prescribed time ' after Irwin’s death, to have the decrees vacated and a new trial ordered. The questions whether the proceedings therefor were begun in time remain to be considered.

3. Tax sale: .. insane ' • owner: commencement of action to redeem: service of notice. Ill It is the appellee’s contention that neither the suits in equity to redeem from the tax sales, nor. the pro. ceedings for a new trial in the actions to. quiet title, were’ begun within the time prescribed by the statute for the exercise of such rights. Oode 1873, section 892, provides that when the ■ “real estate of a minor or lunatic is .sold for, taxes the same may be redeemed at any time-within one year after such disability is removed,” and section 893 further provides that, where a tax deed has-been delivered, the redemption shall be effected “by" equitable action in a court of record.” In proceedings to-vacate a judgment or decree for erroneous proceedings against a person of unsound mind, it is also provided (section 3157) that such proceedings must be- commenced within one year after the judgment or decree was made, “unless the party entitled thereto be a minor, or person of unsound mind, and then within one year from the removal of the disability.” Whether the heirs of John Irwin have any standing in court in the several proceedings involved in these appeals depends upon what shall be held to be a. beginning or commencement of such proceedings, within the meaning of the statute. Section 2599 of the Oode of 1873 reads as follows: “Actions in a court of record shall be commenced by serving defendant with a notice,” etc., while section 2532 is in the following language: “Thede-livery of the original notice to the sheriff of the proper county with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of the notice by another person, is a commencement of the action.” Appellants’ position'is that section 2532 controls,, and that, the original notice in each of the several cases having been delivered to the sheriff of the proper county'before the expiration of the year allowed by the statute, the actions are to be considered as begun in due time, even though in some instances actual service ox notice was not .obtained during the year. Appellees take issue upon this proposition, and insist that, while section 2582 will ordinarily control in the application of statutes limiting the time in which an action may be brought, cases like those before us constitute an exception to the rule, and, to entitle one to prosecute such proceedings, action must be begun, not by simply placing the notice in the sheriff’s hands, but by actual service of such notice. In other words, that in this class of cases an action is not “commenced,” within the meaning of the law, even to avoid the time limitation, until service of notice is obtained.

A majority of the court adopts the appellees’ contention in this respect, and as it is conceded of record that, in three of the six cases before us (Nos. 497, 2,800, and 2,308), notice was not actually served within one year .after Irwin’s .death, it is held that such proceedings are ibarred. In the other cases, service was obtained within .one year after the death of Irwin. The theory upon which •.this conclusion is reached is as follows: That section •2532, being enacted in connection with the general statute of limitations, is to be held applicable only to causes of action at common law and to statutory rights of action, for which the statute creating them provides no special limitation. Stated in other words, if the statute creating a right of action provides in the same connection that the right shall be exercised within a certain named ■ period, then the limitation inheres in the right, and it is unaffected ■by the rules pertaining to limitations generally. Applying that rule to the present case, it is found that the statute saving to the minor and lunatic their right to redeem, ..and the statute conferring the right to demand a new trial Tor erroneous proceedings against them, provide in each ■¡instance that such right shall be exercised within one year after the disability is removed. It follows, therefore, in obedience to the principle above stated, that the .delivery of the notices to .the sheriff is not to be held a commencement of the action. In support of this rule the ■following authorities are relied upon: Miller Brewing Co. v. Capital Ins. Co., 111 Iowa, 590; Parkyn v. Travis, 50 Iowa, 436; Proska v. McCormick, 56 Iowa, 318; 13 Am. & Eng. Enc. Law (1st Ed.) 688, 690; Palen v. Johnson, 50 N. Y. 49; Mewburn's Heirs v. Bass, 82 Ala. 622 (2 South. Rep. 520); Hudson v. Bishop, (C. C.) 35 Fed. Rep. 820; Bartlett v. Manor, 146 Ind. 621 (45 N. E. Rep. 1060); Taylor v. Coal Co., 94 N. C. 525; Insurance Co. v. Hecking, 130 Pa. St. 170 (18 Atl. Rep. 614); McElroy v. Insurance Co., 48 Kan. Sup. 200 (29 Pac. Rep. 478); The Harrisburg, 119 U. S. 199 (7 Sup. Ct. Rep. 140, 30 L. Ed. 358).

I am unable to agree 'with the majority upon this proposition, and upon this proposition I am authorized to ■say that McClain, J., concurs in the opinion hereinafter -expressed.

That many of the authorities do-lay down the rule that where time is of the essence of the right created, and the limitation is an inherent part of the statute creating it, :some of the principles applicable to general statutes of .limitations do not apply, will be readily conceded. But there has not been cited, nor, with a single exception, have I been able to find, any precedent in the decisions •of this court or elsewhere justifying, even by inference, the doctrine upon which, we here place the stamp of our approval. The solitary exception above referred to is found iii an opinion by Shiras, J., at nisi prius, in Hintrager v. Nightingale, (C. C.) 36 fed. 847, and has been, as we shall hereinafter have occasion to note, expressly disapproved by this court apon the very point here involved. -In my opinion, none of the- authorities to which ■our attention is cited bear out the principles contended for. In Parkyn v. Travis, supra, the note upon which suit was brought was due April 2, 1878. The original notice was placed in the sheriff’s hands á day or two before the note was due, but service was not made until the debt had fully matured; and, it being claimed by the defendant that action bad been' prematurely brought, we held that in such case the commencement of the suit dated from the time of service. It needs but little reflection to make plain that this precedent is not in point. Ihe notice was placed in the sheriff’s hands before the note was due, — before any right of action accrued, — -and this was sufficient to justify the presumption that immediate service was not intended. Generally speaking, every right of action is limited by a statutory provision, general or special, fixing a time beyond which the right is barred or extinguished. The purpose of section 2532 is to provide a definite rule or standard, not for determining when the defendant is brought under the jurisdiction of the court, but when the plaintiff shall be held to have set the machinery of the law in motion. It is made particularly for plaintiff’s benefit. The right begins with the -right to sue, and.expires with the last day of the prescribed period. Up to that instant the original notice may be placed in the officer’s hands for immediate service, and the action is then so far begun that if service be thereafter completed .the time limitation, will not avail the defendant. Before section 2532 can be applied in any case, a right of action must exist, and its only effect, when available, is to prevent the running of the statute against that right. The Parleys Gase in no manner called for an application of the statute of limitations, and the section referred to was very properly held to have no effect upon the rights of the parties thereto. In Proska v. McCormick, action was brought upon a written contract which provided that, if suit should not be begun by a certain date, its condition should be “acknowledged fulfilled.” ' Original notice was delivered to the sheriff before, but not served till after, the date named, and we there held that section 2532 was applicable only to statutory limitations, and not tolimita-tions'by contract; a holding which comes far short of the the proposition in support of which it is cited. The citation from the Encyclopaedia of Law, is based upon cases, mostly from the federal courts, which hold, in substance, that the expiration of a special limitation upon a statutory right of action operates to extinguish the right, as well as to bar the remedy, in a foreign jurisdiction as well as in the jurisdiction of its origin. Surely there is nothing in these authorities of such persuasive force or bearing as to require the overruling of our decisions, or the reading into the statute of exceptions and qualifications which the legislature did not see fit to express. Section 2532 of the Code of 1873, identical with the present Code (section 3450), is but a. re-enactment*:of a rule which was already the recognized law of the land. “It is undoubtedly the general rule in the United States, except where otherwise provided by statute, that an action is deemed commenced, so far as the parties to it are concerned, from the time the summons or other process is issued and delivered, or put in the course of delivery, to the officer, with the bona tide intent to have it served.” Freeman’s note to Ross v. Luther, 15 Am. Dec. 341. See, also, Ford v. Phillips, 1 Pick. 202; Burdick v. Green, 18 Johns. 14; Johnson v. Smith, 2 Burrows, 950; Hayden v. Bucklin, 9 Paige, 512; Wood, Limitations, section 289; Angell Limitations (6th Ed.) section 312.

It was competent for the legislature to adopt this prevailing rule, or to declare what other act or step in the origination of legal proceedings should be deemed a “commencement” within due time. It chose to preserve as nearly as practicable the established practice, and declared in unequivocal terms that, whenever the original notice is delivered to the sheriff for immediate service,'the action is commenced. The language is broad and general, without mention of any exception. The mere fact that the provision is found in connection with the general statute of limitations does not affect its application to every time limitation, general or special, for the commencement of actions. Smith v. Callanan, 103 Iowa, 224; Snyder v. Ives, 42 Iowa, 157. We have distinctly so decided. For instance, sections 8154 and 8156 of the Code of 1873 provided a remedy by which a judgment or decree could, be vacated or modified on account of any mistake, neglect, or omission of the clerk, and limited the time within which such remedy could be demanded to one year. This, be it remembered, is a section of the same statute under which the plaintiffs in the cases before us are asking to open up the decrees against John Irwin. It is not found in the title or chapter pertaining to the statute of limitations, and the right conferred is strictly statutory, yet in the case last cited we held that not only section 2532 was applicable to such proceeding, but* upon a record which affirmatively showed that service of the notice was not made until after the year had expired, we would presume that such notice had been delivered to the sheriff within the period of limitation. If any doubt can arise as to the- sufficiency of that authority, there is certainly room for none with reference to Smith v. Callanan, supra. That was an action brought to redeem land from tax sales, and involved an application of section 902, which provided that “no action for the recovery of real property sold for the non-payment of taxes shall lie unless the same be brought within five years after the treasurer’s deed is executed and recorded. ” There, as in the present case, the notice was delivered to the sheriff before the expiration of the period, but was not served until the limit had passed; and there, as now, the point was made that section 2532 was inapplicable, and that section 2599 must govern the rights of the parties. After a general review of the cases and the statute, we said: “It is clear that section 2599 throws no light upon the subject of our inquiry. That section simply points out when an action is commenced. Section 2605 is only material as indicating the officer’s duty as to service, but, like section 2532, is not in terms limited to chapter 2 of title 17 of the Code of 1873. We then have but one section which undertakes to provide what shall be deemed to be a commencement of an action, so far as the statute of limitations is concerned, and that section is 2532. ” After a reference to the precedents, we further said: “We have referred to the foregoing cases, not because they were decisive of the question before us, but rather to show the tendency of judicial construction,.and as indicating to some extentthe view this court has taken as to whether section 2532 is controlling in determining what is the commencement of an action when the limitation is the special one not found in the general chapter on Limitation of Actions. It is apparent that in one or two cases the court, without deciding that section 2532 was applicable in all cases where special limitations are provided, has applied it in such cases. We do not think that the mere fact that section 2532 is found in the general chapter on Limitation of Actions is of itself controlling in determining whether it shall be applied to other cases found in the Code, and especially as it is, in its terms, general and unrestricted.” Eeferring then to the Hintrager Case, above mentioned, we held, in substance, that the opinion of Shiras, J., was evidently based upon a misconception of our holding in Proska v. McCormick, and refused to recognize its authority, and added: “Certain it is, the same rul; should obtain as to what shall constitute the commencement of an action as to the statute of limitations, whether limitation be found in the general chapter, or elsewhere in the Code, unless there is something in the statute itself indicating to the contrary, or unless some recognized rule of construction will be violated in so holding.” We accordingly decided that the action had been brought in due time. The decision we now promulgate not only overrules the conclusion there reached,, but is, as well, a repudiation of the entire line of reasoning which then had our unanimous approval. To say this is not the case is to indulge in a refinement of distinction which inevitably tends to involve the rules of legal practice in obscurity and doubt. -I believe we should uphold the statute according to its clear and unequivocal language, and that each and all of the several proceedings embraced in these appeals should be held to have been begun in proper time for a hearing upon the merits.

Under the ruling of the majority, the decrees of the district court in causes numbered 497, 572, 2,800, and 2,308 are affirmed. Other decrees embraced in these appeals are reversed, and cases ordered remanded for further proceedings not inconsistent with the conclusions above announced. — Aeeibmed in part, and REVERSED in part.