Bennett v. Ellison

141 P. 738 | Ariz. | 1914

CUNNINGHAM, J.

The contested question on this appeal is whether paragraph 2954, Revised Statutes of Arizona of 1901, barred the prosecution of this action. The appellant contends that the prosecution is barred by the statute, for the reason the facts show that the action was not prosecuted ■within the time permitted by law for the prosecution of such action. Appellant admits that the action was commenced when the suit was filed, and that the suit was filed less than four years after the cause of action accrued, but he insists that the plaintiff must diligently prosecute the action, else the operation of the statute of limitations will not be suspended by the mere commencement of the action. In this contention of the law appellant has the support of authority. The rule is stated in 25 Cyc. 1290, as follows:

“While it has been held that the actual commencement of a suit is sufficient to stop the running of the statute of limitations, without regard to, or dependence on, any after diligence of plaintiff in its prosecution, it seems to be well established that if a suit is voluntarily abandoned, or dismissed, or is not proceeded with, for a considerable period of time, the operation of the statute will not be suspended.”

There is no element of abandonment or dismissal in this record. Was the suit proceeded with within such time as to suspend the operation of the statute? This is the question for our consideration. Its solution depends upon the meaning to be given to paragraph 2954, supra, and the showing made by plaintiff in excusing the admitted delay in effecting service of process.

Paragraph 2954, supra, is as follows:

“Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing, executed within this territory (state), shall be commenced and prosecuted within four years after the cause of action shall have accrued and not afterward.”

The facts disclosed by the evidence, and not controverted, are that plaintiff, after commencing his action by filing his complaint, immediately sued out a summons. The summons was delivered to plaintiff’s attorney who promptly sent it out, with a copy of the complaint, for service on the defendant. Three efforts were made within a few months’ time after receiving the summons to have defendant served, but all failed. Inquiry of defendant’s relatives failed to disclose his place of residence to plaintiff’s attorney or to the officers to whom plaintiff sent the papers for service. When inquiry failed to locate defendant, plaintiff’s attorney suspended his efforts in that respect, and trusted to his client to locate the defendant. "When he was located, the original summons had been lost. Plaintiff’s attorney sued out another summons on February 15, 1913, which was served on the same day. About that date plaintiff made an effort to induce defendant to settle the note, but failed. Was this delay incident to the finding of the defendant for service such a delay as would permit the statute to run, notwithstanding the commencement of the action within four years ?

The question of good faith in the commencement and thereafter in the prosecution of an action such as will stop the running of the statute of limitations is one of fact when a complaint has been timely filed and summons timely issued, but a considerable delay is shown before service of process is secured. In this case that question was really the question tried. The plaintiff introduced substantial evidence tending to show his good faith in the prosecution of the suit. The summons was issued immediately upon the filing of the complaint, and three active efforts were made to have the process served, but without success. This evidence was not controverted by contradictory evidence. The court necessarily found that plaintiff’s efforts and acts were made and performed in good faith and with reasonable diligence. The evidence offered sufficiently supports that finding. This fact determined, nothing remained to be tried, and judgment followed. The judgment is responsive to the issue joined, and supported by substantial evidence.

The judgment is affirmed.

FRANKLIN, O. J., and ROSS, J., concur.