Delong v. Delong

335 S.W.2d 895 | Ky. Ct. App. | 1960

MILLIKEN, Judge.

This is an appeal from a judgment for $6,000 which Barbara Delong obtained against her twenty year old son, Bill De-long, for injuries received by her in an automobile accident in Greenup County, about 3:30 a. m., December 30, 1956, when another son’s automobile, driven by Bill, ran into a car stranded without lights on the right side of the highway. The record reveals the mother’s fear of Bill’s high-speed driving before and during the trip, but we do not find it necessary to discuss its legal effect, if any, because of another aspect of the case which we believe to be determinative.

In the first place, we are not favored by a brief from the appellee, so accept the appellant’s statement as true. RCA 1.260. The action in the case was filed October 10, 1957 and no summons was issued or served upon appellee until January, 1958, more than a year after the accident on December 30, 1956. Under CR 3 “a civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” Since no summons was issued against the appellant until the one year statute of limitations (KRS 413.140) had run, the action is barred as to him and the judgment must be reversed. Wooton v. Begley, Ky., 305 S.W.2d 270.

The judgment is reversed as to the appellant, Bill Delong.