Summary
In Wood v. Peerey, 179 Miss. 727, 176 So. 721 (1937) and Swalm v. Sauls, 141 Miss. 515, 106 So. 775 (1926), it is stated that when a petition is presented to a clerk for filing, it is presumed to be accompanied by a request for service of process unless a contrary desire is shown to have been expressed.
Summary of this case from In re Estate of StanbackOpinion
No. 32881.
November 15, 1937.
LIMITATION OF ACTIONS.
The filing of declaration on November 14, 1936, with request to circuit clerk to issue summons at once in action on note which was due November 15, 1930, constituted the beginning of a suit which stopped running of 6-year statute of limitation, notwithstanding clerk delayed issuance of summons until November 18, 1936, and summons was not served until December 3, 1936 (Code 1930, sections 520, 2292).
APPEAL from the circuit court of Alcorn county. HON. THOS. H. JOHNSTON, Judge.
G.C. Moreland, of Corinth, for appellants.
It is our contention that suit was commenced on November 18, 1936, just six years and three days after the due date of the note, just three days after the cause of action was barred by the six-year statute of limitations.
Section 520, Code of 1930, provides the method of commencing suit in circuit court and fixes the time when a suit is considered to have commenced.
Except in cases in which it is otherwise provided, the manner of commencing an action in circuit court shall be by filing in the office of the clerk of said court a declaration, on which a summons for the defendant shall be immediately issued, and an action shall for all purposes be considered to have commenced and be pending from the time of filing of the declaration, if a summons shall be issued thereon for the defendant, and if not executed, other like process, in succession, may be issued in good faith for the defendant.
This statute does not fix the time of commencement of suit by the mere act of filing the declaration, but does fix the time as dating from the filing of the declaration provided a summons for the defendant shall immediately issue thereon.
In some jurisdictions and generally, unless otherwise provided by statute, an action is commenced by original writ or summons, and in such jurisdictions the action is ordinarily deemed to be commenced when such process is sued out or issued. The general rule seems to be clearly settled that a suit is not commenced until a summons has been issued.
1 C.J. 1154; Christian v. O'Neal, 45 Miss. 672; West v. Engel, 101 Ala. 609; Collins v. Manville, 170 Ill. 614; East Tenn. Coal Co. v. Daniel, 100 Tenn. 65.
The general rule being clearly settled that a suit is not commenced in circuit court until summons has been issued, this suit was barred unless prevented by Section 520, Code of 1930.
Stewart v. Petitt, 94 Miss. 769.
If when the declaration is filed, a summons is immediately issued for the defendant, then the action is considered pending, and if there is any defect in the process, this defect may be corrected later, or if the process is not executed other like process may be had, but certainly under the provisions of this statute the mere filing of the declaration, without immediate issuance of process, would not constitute commencement of the action.
Gee v. Tucker, 90 So. 712.
We think the ruling of this court in the case of Stewart v. Petitt, 94 Miss. 769, is decisive of the question presented in this case.
It is our contention that in the case at bar it makes no difference when the appellee's attorney directed the issuance of the summons, this record shows conclusively that process was not immediately issued and that no process was issued until three days after this cause of action was barred by the statute of limitations, the statute must be strictly complied with, the declaration was found by the clerk marked filed and process issued thereon on November 18, 1936, the suit was commenced and was pending on and from November 18, 1936, the appellant's plea of the statute of limitations should have been sustained with judgment for appellants.
N.S. Sweat, of Corinth, for appellee.
The appellee contends that he did all that was required of him by the statute when he filed his declaration and requested that process be issued immediately, that that was all he could do to stop the running of the statute of limitations. The statute of limitations is for the purpose of prohibiting actions after a certain period of time unless due diligence is shown by the party bringing suit within the stated period of limitation. The act of diligence required to stop the running of the statute must be the act of party bringing suit and not the act of some one else.
Bacon v. Gardner, 23 Miss. 61.
What act of diligence or good faith on the part of appellee, other than that performed in the case at bar, could have been performed by him to stop the running of the statute? The issuance of process is act of clerk, and not act of appellee.
Swalm v. Sauls, 141 Miss. 523, 106 So. 777.
The whole first clause of Sec. 520, Code of 1930, taken together defines the manner of instituting suit in the circuit court. The second clause which deals with when the suit is deemed to have commenced provides as follows: "and an action shall, for all purposes, be considered to have commenced and to be pending from the date of the filing of the declaration, if a summons shall be issued thereon for the defendant, and, if not executed, other like process, in succession, may be issued, in good faith, for the defendant."
It appears that the Legislature definitely intended by this clause to fix the time of the commencement of action at the time of the filing of the declaration because it says so in so many words.
37 C.J. 1056-1058, sec. 482; Massey v. Ft. Worth, 262 S.W. 837; Horn v. Polk, 205 Ala. 127, 87 So. 161.
And in Missouri the filing of petition with the clerk of the court before limitations have run is the bringing of a suit within the code although summons is not issued until after that time.
State v. Wilson, 216 Mo. 215, 115 S.W. 549.
This court has held that where declaration is filed in circuit court on December 6, process issued on December 7, although the process was made returnable to a prior date to the issuance of the summons, that action was begun on the filing of the declaration.
Kelly v. Harrison, 69 Miss. 856, 12 So. 261.
If the Legislature intended that the bringing of action is considered to be commenced with the filing of the declaration and the issuing of a summons, or, upon the issuance of a summons, why did it state that an action should for all purposes be considered to have commenced and to be pending from the date of the filing of the declaration?
If the filing of the declaration in this case is not the commencement of the lawsuit then that part of the clause stating that the declaration shall be considered, for all purposes, the commencement of the suit, is of absolutely no meaning whatever, — it may be discarded, stricken from the section — and the statute will have the same meaning. In other words, it would mean that suit is not commenced on the filing of the declaration in good faith and process requested, but is commenced on the issuance of the process. That is not what the statute says and we do not think that is what it means. The Legislature evidently meant to fix time of filing of declaration in good faith as time of commencement of suit, else it would not have said so. It could have had no other purpose in placing that clause in the statute.
Argued orally by G.C. Moreland, for appellant, and by N.S. Sweat, for appellee.
The question is, What action constitutes the beginning of a suit on a promissory note as will stop the running of the six-year statute of limitation, section 2292, Code of 1930?
Appellee sued appellants in the circuit court of Alcorn county on a promissory note for $500. The note was due on November 15, 1930. The right to sue, therefore, accrued on November 16, 1930, and expired six years thereafter. The declaration was filed on November 14, 1936. Appellee requested the circuit clerk to issue summons at once. The clerk failed to do so, but delayed the issuance until November 18, 1936. It was not served until December 3, 1936.
Section 520, Code of 1930, is in this language: "Except in cases in which it is otherwise provided, the manner of commencing an action in the circuit court, shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued; and an action shall, for all purposes, be considered to have commenced and to be pending from the time of the filing of the declaration, if a summons shall be issued thereon for the defendant, and, if not executed, other like process, in succession, may be issued, in good faith, for the defendant."
What the court held in Swalm v. Sauls, 141 Miss. 515, 106 So. 775, 777, with reference to what constituted the beginning of a suit in the chancery court, applies with equal force here. In that case the court said: "The filing of the bill, with request for summons (which request is to be understood as having been made, if the contrary is not expressed), is such a commencement of a suit in the chancery court as to stop the running of the statute of limitation. Bacon v. Gardner, 23 Miss. 60."
Appellee did all he was required by law to do in order to stop the running of the statute. His rights were not defeated by the dereliction of duty on the part of the clerk.
Affirmed.