
    Hunter, Admr. v. The Niagara Fire Insurance Company.
    
      Action to recover upon fire insurance policy — TJpon cause arising in another state — Limited to statutory time of foreign state —Section Jf990, Revised Statutes — Injunction against action does not prevent running of limitation, when — Question of who may plead' limitation of statute — Interstate law — Pleadings.
    
    1. An action to recover upon a policy of fire insurance, though transitory, when brought in this state upon a cause arising in another state is, by virtue of section 4990, Revised Statutes, limited to the time fixed by the statute of that state.
    2. An injunction against the commencement of an action does not save the running of the statute of limitations unless the statute so provides, and no such provision is found in the statute of Ohio or in that of the state of Florida.
    3. Only those who are actors in procuring the allowance of such injunction can, upon that account, be equitably estopped from pleading the statute of limitations.
    (No. 9157
    Decided November 28, 1905.)
    Error to the Circuit Court of Ashland county.
    
      Mrs. Hunter brought suit in the court of common pleas to recover against the defendant, a New York corporation, the amount of a policy of fire insurance executed by it upon her property situated in Clay county, in the state óf Florida. Her petition was filed March 30, 1898. It alleged that the policy was executed on April 29, 1891, and that the property was totally destroyed by fire on the twenty-first day of May, 1891.
    She further alleged that on or about the eighth day of June, 1891, the circuit court of Clay county, Florida, in a suit wherein Post and Flagg were plaintiffs and T. J. Adams, J. I. Adams, The Niagara Fire Insurance Company, Thomas S. Hunter et al. were defendants, an injunction was allowed restraining the defendants from adjusting, settling, collecting or attempting to collect the amount of said loss; that on or about March, 1893, she learned that said injunction had been dissolved and that afterwards said cause was appealed to the supreme court of Florida and was pending therein for several years. She also alleged that she was a resident of Ohio. In its answer the company alleged numerous matters of defense including the following: that the insurance was upon property situated in the state of Florida; that the contract was executed in that state; that the cause of action arose there; that by the statutes of Florida, and therefore by the statutes of Ohio, an action upon it was barred in five years; that the company has kept an office at Jacksonville, Florida, where the policy was executed, from that time until the beginning of the suit and that in the injunction suit in Florida, Mrs. Hunter was not a party and was not served with summons.
    
      Upon the trial of the case the statute of limitations of the state of Florida was introduced by stipulation and it provides that an action upon an instrument in writing not under seal is limited to five years. The cause was submitted to the court without the inter- • vention of a jury and judgment was rendered for the plaintiff. In the circuit court that judgment was reversed upon the ground that- the action was upon a Florida contract; that it was barred by the statutes of that state and therefore barred by the statutes of this state.
    
      Mr. M. L. Smyser and Mr. C. P. Wmbigler, attorneys for the plaintiff in error.
    
      Mr. J. W. Mooney, attorney for the defendant in error.
   Shauck, J.

The transitory character of an action to recover on a policy of fire insurance is not denied by the judgment of the circuit court. That character requires the conclusion that jurisdiction of the action may be'exercised by a court of any state where service upon the insurer may be effected. The question presented by the record does not relate to the jurisdiction of the Ohio court, but to the time limited for invoking the exercise of that jurisdiction.

This contract of insurance was applied for, signed and delivered in the state of Florida and it covered property situated in that state. The property was destroyed by fire on the twenty-first day of May, 1891. The cause of action then arose in that state. The action was commenced-in a court of Ohio, March 30, 1898. On behalf of the plaintiff it is urged that if this cause of action had arisen in this state it would not be barred by our statute and that the limitation of an action, being a part of the remedy, must, under the general rule upon that subject, be determined by the law of the forum. The force of this view seems to be entirely averted by the terms of our own statute, which, for the government of such a case, adopts the limitation of the state in which the cause of action arose, at least, to the extent that the action cannot be brought here when barred there. Section 4990 of our statutes is: “If, by the laws of the state or country where the cause of action arose, the action is barred, it is qlso barred in this state.” On the trial of the present case the statute of limitations of the state of Florida was introduced by stipulation. An examination of that statute makes it quite apparent that the question is determined by the third section which limits to five years the commencement of “an action upon a contract, obligation or liability founded upon an instrument of writing not under seal.” It follows that when the circuit court concluded that the action was barred it gave full effect to the law of the forum.

But it is urged that the operation of the injunction granted by the Florida court either prevented the operation of the statute or estopped the defendant to plead it. This proposition must fail even if we assume in its aid that the plaintiff was bound by the injunction and that it continued in force for the time necessary to give it the effect claimed. Neither the statute of Ohio nor that of Florida provides for such 'an exception to the operation of the statutes by which actions are limited. In a number of the states the statute expressly saves causes from its operation during the time of the operation of an injunction which prevents the bringing of an action thereon. There is no snch saving unless the statute so provides. In Wood on Limitations, section 243, the law is so stated, and the statement is justified by a collection and classification of the decisions according to the presence or absence of such saving provisions.

Counsel for the plaintiff urge the view that because of the pendency of the injunction suit the company is estopped to plead the statute, and Treasurer v. Martin, 50 Ohio St., 197, is cited in its support. The second proposition of the syllabus in that case states the point decided with reference to the pleading of the statute of limitations; and it holds that the estoppel operates against him who has wrongfully procured the injunction. That the doctrine of the case is not applicable here is apparent,- since, in the present case, the party pleading the statute was in no sense an actor in procuring the injunction.

Judgment affirmed.

Davis, C. J., Price, Crew, Summers and, Spear, JJ., concur.  