
    EMILY FOLLANSBEE, Administratrix, v. THE DISTRICT OF COLUMBIA.
    [D. C. 242.
    Decided February 1, 1897.]
    
      On the defendant’s Motion.
    
    Under the District Claims Act, 13th February, 1895, the claimant moves for a new trial and the allowance of board rates. The original suit was dismissed on defendant’s motion, claimant consenting.
    I.The District Claims Act, 13ih February, 1895 (28 Stat. L., 664), in addition to a new trial, granted claimants the rates established and paid by the Board of Public Works.
    II.New trial will not be granted as of course but only where Board rates have not been allowed. The new trial is to enable the parties to recover what they were not entitled to when these suits were originally before the court.
    III.The new rate of recovery granted by the statute is in a legal sense a gratuity.
    
      The Reporters’ statement of the case:
    The grounds of the defendant’s motion are set forth in the opinion of the court.
    
      Mr. Robert A. Howard for the motion:
    The District Claims Act of June 16-, 1880 (21 Stat. L., 284, 285), requires that the prosecutions of all claims shall be commenced within six months from the passage of the act. By the seventh section of that act it is provided that it shall be the duty of the claimant to prosecute his suit diligently. The judgment of dismissal, which is the form of judgment in this court, is equivalent to a judgment of discontinuance. It is a final judgment. The parties are left exactly as they were before suit commenced. (Freeman on Judgment, 12-17; Weston v. Charleston, 2d Pet., 447-464.) While, however, it is not a bar nor an estoppel it is a full settlement of that suit.
    
      Anything, however, which claimant may have done under this suit can not take him out of the operation of any statute of general or special limitation. The limitation in the statute we are considering is a special limitation. The claimant, having dismissed his suit long after the expiration pf the time in which claims could be prosecuted, lost all remedy under that statute.
    Where a party, less than four years after his demand had accrued, preferred it in the form of an answer to complainants’ bill, aud complainants afterwards dismissed their bill, and defendant then immediately prosecuted his claim, but in the meantime the statutory limit had expired: Held, that it was barred by the statute of limitation. (Fx parte Sanies, 1 Cheves (S. 0.) Eq., 203.)
    The provisions of a statute limiting the time within which an action must be brought is not a statute of limitation. The statute confers a right which did not exist before, and must be strictly complied with. (Taylor v. Iron and Goal Go., 94 N. C., 525.) This brings us to the second branch of the question, which is, whether, with the statutes of Massachusetts and Pennsylvania, above referred to, in force at the time of the collision, a suit in rem could be maintained against the offending vessel if brought, in time. About this we express no opinion, as we are entirely satisfied that this suit was begun too late. The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. No one will pretend that the suit in Pennsylvania or the indictment in Massachusetts could be maintained if brought or found after the expiration of the year, and it would seem to be clear that if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. It matters not that no rights of innocent parties have attached during the delay. (Bucldin v. Ford, 526 S. C. Rep., 395,13; 8m. v. Hi., 329; 3 Johns. Oh., 142; 16 Ark., 649, 17-26-201; Hayes v. Stewart, 23 Yt., 622-625.)
    
      This very question was decided, in Lytle et al. v. State et al. (17 Ark., 608-622), where it was held:
    “Suit having been dismissed, and no new suit commenced within the saving of the statute, suit could not be brought against defendants.” (See also Gollis v. Waddy, 2 Munf., Va., 511; Walker v. Peay, 22 Ark., 103.)
    In Robinson’s Exo. v. Robinson (5 Harr., Del.) the court said:
    “There is no saving in the case of a reversal of a judgment for a defendant, and no need of one; and if there were such a saving it would enable the plaintiff to bring successive suits indefinitely, as often as the judgment against the defendant is reversed.”
    There was no trial of this claim; there was no counterclaim or set-off; there was no defense pleaded, but a general denial. The case was discontinued, and the court lost all jurisdiction over it. (Hutchings v. Bucle, 32-Me., 377.)
    The claimant imagines that he secured some favorable proceeding by virtue of having brought a suit under the act of 1880, standing upon which he could gather to himself all the advantages and benefits which were given to persons specified in the act of 1895. That act embraced two classes of persons, those having a suit pending in the Court of Claims brought under the act of 18S0 and those having had an adjudication upon their claims, and who became, in a certain contingency, entitled to a new trial. Claimant is certainly not in the first class. No ingenious juggling of terms will place him in the second.
    The statute provides that in the adjudication of claims where board rates had not been allowed the claimant should be entitled to a new trial. But here there had been no adjudication; here there was no claim for board rates; here there was no claim for any rates at all. There is no ground provided for in the act of 1895 upon which this claimant could base an application for a new trial. He took nothing by his abortive effort to maintain suit. By his own act he is precisely in the situation of those who made no attempt to bring any suit at all.
    It is not to be presumed that it was the intention of Congress to make unjust discrimination. Therefore, no rule of liberal construction can be applied to this statute under the pretense of extending equitable relief.
    
      This claimant, then, stands in no better light than though he had brought no suit at all. In applying the terms of the statute to his case there is no call for construction. Nothing need be added to make the wording of the statute plain, clear, easily understood, and clearly defined. There having been no adjudgment of any question of rates at which he should be paid, and his suit having been for an entirely different purpose, and having been dismissed, he is not within any of the provisions of the act of 1895.
    It is urged that since the passage of this latter statute the defendant has appeared and assented to certain further proceedings under a new trial allowed by this court. That makes no difference as to the rights of the United States or of the District of Columbia.. This question is jurisdictional. There can be neither waiver nor estoppel by this action of the defendant. If the defendant had not brought a suit under the act of 1880 which had been decided upon the merits or was still pending at the time of the passage of act of 1895, this court has no jurisdiction in the premises.
    
      Mr. V. B. Edwards opposed.
   Nott, Ch. J.,

delivered the opinion of the court:

This is a suit brought under the recent District Claims Act, 13th February, 1895 (28 Stat. L., 664). The defendant moves to dismiss the case upon the ground that the original suit under the District Claims Act, June 16th, 1880 (21 Stat. L., 284, 285), was never brought to trial. It appears that the claimant made a call for evidence upon the Commissioners of the District of Columbia in June, 1881, for certain record evidence, which was transmitted and filed in the court; that no further evidence was ever presented; that a stipulation dismissing some of the items set forth in the petition was given by the claimant’s attorney, and that in February, 1885, on the defendant’s motion, the claimant consenting, the case was finally dismissed.

The recent statute provides that in the adjudication of claims brought under the former act this court “shall allow the rates established and paid by the board of public works, and that whenever said rates have not been allowed the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause.” The claimant made her motion within due time and it was allowed. Subsequently the case was referred to a referee to take and state ah account. The referee’s report has come in and a motion has been made to confirm it; but the question now presented by the defendant is whether this claimant is entitled to the benefits of the act of 1895. It is contended that a case dismissed for nonprosecution by the defendant, with the consent of the claimant, is not a case tried, and that a new trial can not be granted under the act where there was in fact no trial before.

The right given by the act of 1895 is something more than a right to a new trial. If it were merely that, the defendant’s motion would probably be well taken. A person who has not exercised the vigilance and diligence necessary to secure to himself one trial it may well be said is not entitled to another. But this act grants something more than the privilege of a readjudication of such claimant’s rights. If it granted nothing more, they would be no better off than they were before, for they then had all that they were entitled to recover. The additional right is granted by the words “the Court of Claims shall allow the rates established and paid by the board of public works.” , The new trial is not to be granted as of course in all cases, but only in those cases where said rates have not been allowed.” The purpose of the statute is to allow board rates to all contractors who did not receive them. The new trial is merely an incident — a remedy to enable the parties to recover what they were not entitled to recover when-their suits were originally brought before the court.

This new rate of recovery so given by the statute is in a legal sense a gratuity, though founded upon an equitable consideration and the desire of Congress to treat all contractors of the District alike and to do to each substantial justice. But so was the relief given by the act of 1880 a legal gratuity. The contractors had another jurisdiction — the Supreme Court of the District of Columbia — into which they could go to assert legal rights. But they had no legal rights at the time Avhich were worth asserting. Their contracts made the engineer officers of the District arbitrators, and those arbitrators had fixed the quantity or amount of the work, and the contractors could not go behind the amounts and quantities fixed. Congress accordingly authorized this court to try their cases de novo, and in addition to affording them a new jurisdiction, in effect waived all defenses which precluded a decision upon the merits. The purposes of the act of 1880 were carried out in a broad and liberal spirit, and there is no reason why the single purpose of the later statute should not have effect given to it in the same manner.

It is also to be observed that under the decisions of the former period this claimant would not have been entitled to recover. As the case then stood, she was not entitled to receive board rates, and at contract rates nothing was due to her. It would therefore have been an absurdity and an inconvenience for her to have gone to trial with the certainty that nothing would be recovered. The law does not exact an inconvenience where it will accomplish, nothing, and a statute of this character should not be so construed as to make a needless inconvenience a condition precedent to redress.

The motion of the defendant is overruled.  