123 Kan. 214 | Kan. | 1927
The opinion of the court was delivered by
In an action on a promissory note defendants asked that an additional party be made defendant. This was done. The original defendants then filed a cross petition against the new defendant seeking to hold him liable to the plaintiff jointly with themselves. The newly made defendant demurred to the cross petition. The demurrer was sustained. The original defendants have appealed.
Briefly, the material matters, as shown by the record, are as follows: On May 25, 1925, the plaintiff, a holder in due course, sued for the balance due on a promissory note for $4,400, dated October 13, 1924, signed by T. P. Tucker, George L. Reid, Robert Pringle, Charles Morgan and J. S. Davidson, payable to W. M. Glenn, and by him indorsed. All of the makers and the indorser were made parties defendant and were personally served with summons. On June 18, 1925, the original defendants filed a motion that H. F. Lowder (and others, whose rights are not in controversy here) be made parties defendant and be required to plead to the petition of
The principal question presented is the statute of limitations. There is no contention that H. F. Lowder signed or indorsed any of the notes except the one dated September 3, 1919, which was due March 3, 1920. He was served with summons in this case on July 8, 1925, but no petition was filed against him, naming him as a party defendant and attempting to state any cause of action against him, until October 20, 1925. No summons was served after the petition was filed. It is unusual to serve a party with summons before a petition is filed against him, and there is no statute author
“A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.” (R. S. 60-301.)
For the purpose of computing the statute of limitations an action is deemed commenced, “as to each defendant, at the date of the summons which is served on him.” (R. S. 60-308.) But this section of the statute contemplates that a petition has been filed stating, or at least attempting to state, a cause of action against such defendant, as provided by R. S. 60-301. Even if a petition had been filed before summons was issued, but such petition stated no cause of action against the defendant in question, and at some time later the petition was amended so as to state a cause of action against such defendant, the date of the filing of such amended petition would be the date of the commencement of the action against such defendant. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516.) The first and only petition filed in this case against H. F. Lowder, attempting to state a cause of action against him, was the cross petition filed October 20, 1925. For the purpose of computing the statute of limitations the action was commenced against him on that date. Counting the time when the note which he signed came due, March 3, 1920, to the date the petition was filed against him, October 20, 1925, the time was five years seven months and seventeen days. It was alleged in the cross petition that he had been absent from the state five months. Deducting that time, the cross petition was filed five years two months and seventeen days after the note he signed came due, which is two months and seventeen days more than the period of the statute of limitations for an action upon such note. (R. S. 60-306, 1st clause.) The trial court was correct in holding that the statute of limitations had run as against Lowder.
Appellants call attention to a clause in the body of the note dated September 3, 1919, reading as follows:
“The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and consent that time of payment may be extended without notice thereof.”
H. F. Lowder indorsed this note in blank. He was otherwise a stranger to the instrument; that is, he was not a maker nor the payee. Whatever may be the true construction of this clause in other re
The judgment of the court below is affirmed.