With reference to the running of the statute of limitations, action is deemed commenced at the date of summons served on each defendant or a codefendant who is a joint contractor or otherwise united in interest with him: provided, that an attempt to commence the action is equivalent to the commencement thereof, if the party faithfully, properly and diligently endeavors to procure service, and actually follows the attempt by procuring service or making the first publication within 60 days thereafter. Cowley-Lanter Lbr. Company v. Dow, 150 Okla. 150, 300 P. 781. Appeal from District Court, Oklahoma County; R.P. Hill, Judge.

See also Fitzsimmons v. Rauch, 197 Okla. 426, 172 P.2d 633. Defective service fails to meet the requirements of the statute. Myers v. Kansas, Okla. Gulf Ry. Co., supra; Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781; Blakeney v. Francis, 105 Okla. 11, 231 P. 464. Section 97 also provides that "An attempt to commence an action shall be deemed equivalent to * * * commencement * * * when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days."

This cause of action commenced on February 18, 1933, was therefore in time, but for the provisions of the statute, section 103, supra, as to the matter of service. Under the provisions of such section it will be seen that an action shall be deemed commenced "when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days." The service of the last summons being long after the expiration of the 60-day period when the first service was attempted, the question is whether or not the statute of limitations had run against it. This point seems to have been ruled by the Oklahoma Supreme Court in the case of Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781. There the case arose upon a defective summons, the motion against which was confessed; the court holding that, where an alias summons was issued after the limitation had run, the suit was barred by the statute.

In Kile v. Cotner, 415 P.2d 961 (Okla. 1966), this court stated, referring to § 97, "[t]he above section defines the time when an action is deemed commenced when the question of limitations is involved." In Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781 (1931), we held "that for certain purposes there are three different times or periods when action may be deemed to have commenced." The purposes enumerated by the court were (1) generally, under Section 231, C.O.S. 1921, now 12 O.S. § 151[ 12-151]; (2) as notice of pendency of action under Section 260 C.O.S. 1921, now 12 O.S. § 180[ 12-180]; and (3) with reference to the running of the statute of limitations under Section 187, C.O.S., now 12 O.S. § 97[ 12-97].

Defective service fails to meet the requirements of the statute. Moore v. Dunham, supra; Myers v. Kansas O. G. Ry. Co., 200 Okla. 676, 199 P.2d 600; Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781; Blakeney v. Francis, 105 Okla. 11, 231 P. 464. We hold that the action from which this appeal arises was not commenced in the sense contemplated by applicable statutes, either on October 26, 1962, or within sixty days thereafter and that the running of the applicable statute (12 O.S. 1961 § 95[ 12-95], subdivision Third, within two (2) years,) was not tolled by Mr. Boyd's removal to Montana.

The trial court sustained the motion to quash and service was not had thereafter within the time prescribed by Title 12 O.S. 1961 § 97[ 12-97]. Without question, the alleged cause of action was barred by the statute of limitations. Under the authority of Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781; and Harder v. Woodside, supra, the trial court correctly sustained the special demurrer of the defendant which specifically alleged that plaintiff's action was barred by the statute of limitations. Judgment affirmed.

The above section defines the time when an action is deemed commenced when the question of limitation is involved. See Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781. In Kelly-Goodfellow Shoe Company v. Todd, 5 Okla. 360, 49 P. 53, we said that Section 97, supra, is a statute of limitation, enacted for the purpose of constituting a special defense and bar to an action on the ground of lapse of time between the incurring of a liability and an attempt to enforce it by legal proceedings, and its provisions are expressly limited.

We have held in a number of cases that an action is not commenced unless summons is served, or the attempt to procure service is followed by procuring service, or making the first publication of notice by publication as provided by section 97, supra. See Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781; Blakeney v. Francis, 105 Okla. 11, 231 P. 464. Our statute was adopted from Kansas, and the Kansas courts have been consistent in holding that an action must be commenced in accordance with the provisions of section 97 in order to enable plaintiff to avail himself of the saving provisions of section 100, supra. O'Neil v. Eppler (Kan.) 162 P. 311; Vann v. Missouri, K. T. Ry. Co. (Kan.) 205 P. 607.

In addition to the plain language of the statute there are other compelling reasons for our holding that the commencement of the action relates back to the date of the issuance of the summons. If the rule were otherwise, decision as to whether the action should be commenced within the statutory time (in cases like this) would rest, not with the plaintiff, but with the sheriff, for the matter would depend upon when, during the ten days allotted him, he chose to make service. This is contrary to the policy of the law as expressed in other statutes relating to the commencement of actions. As we pointed out in Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781, actions are generally deemed to be commenced, under 12 O.S. 1941 § 151[ 12-151], when the petition is filed and a summons caused to be issued thereon, and under 12 O.S. 1941 § 180[ 12-180] actions are deemed commenced for the purpose of imparting lis pendens notice when the petition is filed, provided summons is served or publication commenced within 60 days thereafter. Under both these sections the commencement of the action is dependent upon acts entirely within the power of plaintiff to perform, and we think the Legislature did not intend a different result under section 97. Furthermore, the construction contended for by defendants would render meaningless the provision that an attempt to commence an action shall be deemed equivalent to the commencement thereof provided service is actually had or publication commenced within 60 days thereafter.

We are of the opinion that the trial court correctly sustained the demurrer to the petition. Under the decision in Cowley-Lantner Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781, construing the statute, supra, when more than 60 days elapsed between the filing of the petition and issuing of the first summons and the issuing of alias summons following the quashing of the service of the first summons, the action died. The effect of permitting this action to die in this manner was to allow the statute of limitations to run against the cause of action on the note and mortgage.