Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223 (5th Cir. 1943). · Go Syfert
Search
Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223 (5th Cir. 1943). Cases Citing This Book View Copy Cite
“limitation statutes oper- ate on the remedy. they do not extinguish the right.”
35 citation events (11 in the last 25 years) across 17 distinct courts.
Strongest positive: Wojtas, Richard J. v. Capital Guardian (ca7, 2007-02-15)
Treatment trajectory · 1946 → 2026 · click a year to view as-of
1946 1986 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Wojtas, Richard J. v. Capital Guardian
7th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
limitation statutes oper- ate on the remedy. they do not extinguish the right.
discussed Cited as authority (rule) Ferguson v. Stokes
Va. · 2014 · confidence medium
The problem with this argument is that a statute of limitations defense may be waived "before or after expiration of 10 the prescribed time limit." Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir. 1943); see United States v. Hitachi America, Ltd., 172 F.3d 1319, 1334 (Fed.
discussed Cited as authority (rule) Igal v. Brightstar Information Technology Group, Inc. (2×)
Tex. · 2008 · confidence medium
D. 603 (1992) (arguing in his "chronology protection conjecture" that the laws of physics are such as to prevent time travel on all but sub-microscopic scales). [7] RESTATEMENT (FIRST) OF JUDGMENTS § 49 cmt. a (emphasis added)). [8] RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 110 cmt.b (1988). [9] Reinke v. Boden, 45 F.3d 166, 173 (7th Cir. 1995); Henson v. Columbus Bank, 651 F.2d 320, 325 (5th Cir. 1981); Jimenez v. Toledo, 576 F.2d 402, 404 (1st Cir. 1978); Sack v. Low, 478 F.2d 360, 363 (2d Cir.1973); Titus v. Wells Fargo Bank & Union Trust, 134 F.2d 223, 224 (5th Cir. 1943); Stokke v. S. …
discussed Cited as authority (rule) Bonnie M. Wojtas and Richard J. Wojtas v. Capital Guardian Trust Company Now Known as Capital Bank & Trust Company
7th Cir. · 2007 · confidence medium
The Bolten opinion noted that “the adjudication on [the limitations] issue had nothing to do with the merits of the case and meant nothing more than that the action could not proceed in the Illinois jurisdiction,” 180 F.2d at 382 (citing Titus et ux. v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir.1943) (“Limitation statutes operate on the remedy.
discussed Cited as authority (rule) Wenke Ex Rel. Laufenberg v. Gehl Co. (2×)
Wis. · 2004 · confidence medium
See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979); Weber v. Bd. of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 70 (1873); Pillow v. Roberts, 54 U.S. (1 How.) 472, 477 (1851); Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir. 1943); Cent.
discussed Cited as authority (rule) United States v. Hitachi America, Ltd.
Ct. Intl. Trade · 1997 · confidence medium
However, three of the four authorities cited in the treatise are either clearly distinguishable or do not stand for the proposition asserted: in Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir. 1943), the court reasoned, “Limitation statutes operate on the remedy.
cited Cited as authority (rule) Duncan v. Lisenby
Tex. App. · 1995 · confidence medium
App.—Fort Worth 1952, writ refd n.r.e.); Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir.1943).
cited Cited as authority (rule) Long Island Trust Co. v. Dicker
N.D. Tex. · 1979 · confidence medium
Titus v. Wells Fargo Bank, 134 F.2d 223, 224 (5th Cir. 1943).
discussed Cited "see, e.g." Western-Southern Life Asuc Co. v. George Kaleh
5th Cir. · 2018 · signal: see also · confidence medium
Duncan v. Lisenby, 912 S.W.2d 857, 858-59 (Tex. App. 1995) (explaining that “[a] general agreement in advance to waive” limitations is void and that the waiver “must be specific and for a predetermined length of time” to be enforceable); see also Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir. 1943).
discussed Cited "see, e.g." Chang v. Northwestern Memorial Hospital
N.D. Ill. · 1982 · signal: see also · confidence low
Jimenez v. Toledo, 576 F.2d 402 (1st Cir. 1978); See also Titus v. Wells Fargo Bank & Union Trust, 134 F.2d 223 (5th Cir. 1943) (dismissal of diversity case on limitations grounds is without prejudice to bringing the action in another jurisdiction); Stokke v. Southern Pacific Co., 169 F.2d 42 (10th Cir. 1948); Warner v. Buffalo Drydock Co., 67 F.2d 540 (2d Cir. 1933), cert. denied, 291 U.S. 678 , 54 S.Ct. 529 , 78 L.Ed. 1066 (1934); Cummings v. Cowan, 390 F.Supp. 1251, 1255 (N.D.Miss.1975).
discussed Cited "see, e.g." Kenneth M. Henson, Plaintiff-Appellant-Cross v. Columbus Bank and Trust Company, Defendant-Appellee-Cross (2×)
5th Cir. · 1981 · signal: see also · confidence low
Jimenez v. Toledo, 576 F.2d 402 (1st Cir. 1978); See also Titus v. Wells Fargo Bank & Union Trust, 134 F.2d 223 (5th Cir. 1943) (dismissal of diversity case on limitations grounds is without prejudice to bringing the action in another jurisdiction); Stokke v. Southern Pacific Co., 169 F.2d 42 (10th Cir. 1948); Warner v. Buffalo Drydock Co., 67 F.2d 540 (2d Cir. 1933), cert. denied, 291 U.S. 678 , 54 S.Ct. 529 , 78 L.Ed. 1066 (1934); 3 Cummings v. Cowan, 390 F.Supp. 1251, 1255 (N.D.Miss. 1975).
Retrieving the full opinion text from the archive…
TITUS Et Ux.
v.
WELLS FARGO BANK & UNION TRUST CO.
10186.
Court of Appeals for the Fifth Circuit.
Feb 18, 1943.
134 F.2d 223
1943 U.S. App. LEXIS 3521
B. D. Tarlton and Hal F. Rachal, both of Corpus Christi, Tex., for appellants., Marcellus G. Eckhardt, Jr., of Corpus Christi, Tex., and L. Hamilton Lowe, of Edinburg, Tex., for appellee.
Sibley, Hutcheson, McCord.
Cited by 30 opinions  |  Published
HUTCHESON, Circuit Judge.

Brought on allegations of diversity of citizenship in a federal court in Texas, by Wells-Fargo Bank and Union Trust Company, plaintiff, a California corporation, against Louis Titus and his wife, Alice Titus, alleged to be resident citizens of Nueces County, Texas, the suit was to recover on two separate written contracts of guaranty, which had matured more than four years prior thereto. Each contract provided “The undersigned hereby guarantees * * * as a continuing guar[*224] anty and irrespective of any statute of limitations and unconditionally and at all times * * * Both defendants plead the Texas Statutes of Limitations of four years. The defendant, Alice Titus, plead her coverture. There was a pretrial stipulation that at the time of the execution of the guaranty agreements, the defendants were residents of Washington, D. C., and were only temporarily in California, and an agreement that plaintiff is entitled to judgment against both defendants unless precluded by the defense of the statute of limitations, or as to Mrs. Titus by her plea of coverture. On the trial it was conceded: that the agreement to waive the statute of limitations was valid in California where the contract was executed and was to be performed, and because it was, it was also valid in the District of Columbia where defendants resided when the contract was made; and that the contract was valid and enforcible when made against both defendants because Mrs. Titus’ coverture would not be a defense to a suit brought either in California or the District of Columbia. It was also conceded that if the contract had been made in Texas, to be performed there, the agreement to waive the statute of limitations would be unenforcible against both defendants, and Mrs. Titus’ joinder with her husband jn a contract of guaranty would be unenforcible as to her as subversive of the statutes of Texas and contrary to its public policy.

The district judge, treating the agreement to waive the statute as going not to the remedy for the enforcement of the contract but to its substance, concluded that made in California to be performed there, and valid there, and in the District of Columbia where the defendants resided when it was made, that it did not contravene the public policy of Texas when sought to be enforced there. He, therefore, rejected the defense of the statute of limitations and held the contract valid and enforcible. As to the defense of coverture, he held that, valid and enforcible in California and in the District, its enforcement against a married woman moving to Texas after the contract had been made was not violative of the public policy of Texas.

We are not in any doubt that the defense of the statute of limitations should have been maintained. The agreement not to plead limitation was not of the substance of the contract, it pertained entirely to the remedy for its enforcement. Lex Loci contractus in the absence of a statute creating the right has no application to statutes of limitation. The lex fori governs. 11 Am.Jur. 506. Limitation statutes operate on the remedy. They do not extinguish the right. They are enacted in each state as an expression of the public policy of that state to encourage promptness in the bringing of actions and as statutes of repose. Whether or not the statute will be pleaded is a personal privilege, and the defense may be waived either before or after the expiration of the prescribed time limit, but it is generally held that any waiver before the bar has fallen must be specific and only for a reasonable time, and that the purpose of such statutes may not be thwarted by general agreements to waive the benefit of the statute permanently 34 Am.Jur., p. 320. The Texas courts have adopted this view. Nunn v. Edminston, 9 Tex.Civ.App. 562, 29 S.W. 3115; Young v. Sorenson & Cooper, Tex.Civ.App., 154 S.W. 676. This being so, when plaintiff, electing to sue in Texas, invoked the remedy there afforded, it did so subject to the laws of Texas governing those remedies and must stand or fall by them. [1] Because, however, such a defense goes not to the substance of the contract but operates merely on the remedy, a judgment which denies relief, merely because such a statute has run against the claim, determines only that no action may be brought on that claim in that state. It does not and cannot determine that an action may not be maintained on the contract in another state. Freeman on Judgments, 5th Ed. Vol. 3, § 726, p. 1538; § 1297, p. 2885.

Because plaintiffs have no remedy which they can enforce in Texas against either defendant, we express no opinion on whether, but for the defense of limitation, there could be a recovery there against Mrs. Titus, notwithstanding her plea of coverture. The judgment is reversed and the cause is remanded for further and not inconsistent proceedings, including the right of plaintiff, if it is so advised, to dismiss its suit without prejudice.

1

If action is barred by the statute of limitations of the forum, no action can be maintained though it is not barred in the state where the cause of action arose. A. L. I. Restatement, Conflict of Laws, § 603.