Freer v. PotterFreer v. Potter
The accident occurred on April 5, 1978, when a truck driven by one of the defendants, James A. Pinson, collided with a vehicle driven by defendant Thomas H. Potter. Pinson was an employee of defendant Southeast Steel Company Wire Corporation (Southeast Steel) and Potter was an employee of defendant Paper Products Co. Plaintiff Freer, a Florida resident, was a passenger in the car driven by Potter and was injured in the accident. Potter is an Alabama resident and Paper Products Co. is an Alabama corporation, while Pinson is a Louisiana resident and Southeast Steel is a Louisiana corporation.
On April 4, 1979, one day before the statute of limitations was to run, Freer filed complaints in the Circuit Court of Mobile County against all defendants and in the Civil District Court for Orleans Parish, Louisiana, against all defendants except Paper Products, Inc. In Louisiana, service of process was issued on that date against all defendants named in that suit. In Alabama, however, there was attached to the complaint a statement regarding service that stated:
“PLEASE SERVE DEFENDANTS
(AFTER NOTIFICATION BY PLAINTIFF‘S COUNSEL).”
A note from plaintiff‘s counsel filed in the clerk‘s office stated:
“DEAR KATIE
“PLEASE WITHHOLD SERVICE ON THE FREER V. PORTER [sic] PAPER PRODUCTS CASE. WE ARE ATTEMPTING TO SETTLE SAME.
“EDWARD MASSEY”
The docket sheet contained the following notation:
“SERVICE WITHHELD AT THE REQUEST OF ED MASSEY, ATTEMPTING TO SETTLE SAME (see note in file).”
On July 3, 1979, the suit in Louisiana was dismissed as against Potter for lack of jurisdiction. The suit remains pending against Pinson and Southeast Steel.
In Alabama, Paper Products Co. was not served with the summons and complaint until June 30, 1980, some two years, two months, and twenty-five days after the accident. Potter was not served until July 17, 1980, two years, three months, and twelve days after the accident. Southeast Steel was served by certified mail on May 25, 1979, and service was attempted on Pinson on June 15, 1979. Pinson‘s attorney accepted service for him on February 17, 1981. On March 17, 1980, a complaint in intervention was filed by appellant U.S. Fire.
On January 30, 1981, defendants Potter and Paper Products Co. moved for the entry of a summary judgment on the authority of Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala. 1980). On February 5, 1981, defendants Pinson and Southeast Steel filed a
On July 23, 1981, more than thirty days from the entry of the court‘s order granting summary judgment, the plaintiffs filed a motion for reconsideration. This motion was denied by the court on July 31, 1981. Later that day, forty-two days after the entry of final judgment, notice of appeal was filed by Freer and on September 4, 1981, more than forty-two days after final judgment, notice of appeal was filed by U.S. Fire.
Appellants contend that our recent case of Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala. 1980), was an incorrect statement of the law and should be overruled. We cannot agree. In that case, this Court held that while the filing of a complaint is a significant factor in commencing an action and suspending the operation of the applicable statute of limitations, it is not the sole factor to be considered. The Court further stated:
“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.”
391 So.2d at 1035. A large number of cases support that rule. Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905) (filing with note to “hold it” did not constitute commencement of the action until such instructions were withdrawn); Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) (“hold” order given to sheriff releases party from suit since there was no proper filing); Green v. Ferguson, 184 S.W.2d 790 (Mo.App. 1945) (filing of suit with instructions to clerk to hold service until further notice was not the “commencement of suit“); Franz v. Radeackar, 264 S.W. 97 (Mo.App. 1924) (if clerk is instructed upon filing to withhold service until further notice, action will not be treated as brought until the clerk proceeds with service); McMullen Oil and Royalty Co. v. Lyssy, 353 S.W.2d 311 (Tex.Civ.App. 1962) (filing of petition does not toll statute of limitations since there must be a bona fide intent to issue process).
Plaintiff Freer argues that under
Freer also contends that if we do not overrule Ward v. Saben Appliance Co., then that case should not apply here, because the plaintiffs filed suit in two jurisdictions and perfected service in the other jurisdiction, Louisiana. Freer contends that since Louisiana has a direct action statute so as to allow a suit to proceed directly against an insurance company, he desired to file suit in Louisiana against all parties, including the Alabama defendants. This was done prior to the expiration of the statute of limitations and service was requested and obtained on all defendants sued there. Freer states that since there was a question of whether the Louisiana court had jurisdiction over the Alabama defendant, the present suit was filed in Mobile County, Alabama, but service was withheld until a determination of jurisdiction over the Alabama defendant was made to avoid the expense of prosecuting two actions at once in two different states. Freer states that when the Louisiana suit was dismissed, service was perfected in this case. As a result,
Plaintiff Freer, while attempting to convince this Court that the failure to prosecute the Alabama suit until after it was dismissed in Louisiana was to reduce expenses, fails to mention the burden and expense placed upon the defendants Pinson and Southeast Steel, who presently are being forced to defend the suit in both jurisdictions, and defendant Potter, who was caused to defend the suit in Louisiana and, after its dismissal, in Alabama. Furthermore, Potter was not notified of the suit in Alabama for over one year after the Louisiana suit was dismissed against him.
“(a) All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless otherwise specifically provided for in this Code.”
Turning to the appeal by U.S. Fire, we hold that this appeal must be dismissed, since notice of appeal was not filed within forty-two days of judgment as required by
Because of the untimely appeal by U.S. Fire, that appeal is dismissed. As to the plaintiff, Freer, we hold that Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala. 1980), is controlling and that the defendants were entitled to summary judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala. 1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala. 1981). Therefore, the trial court‘s summary judgments in case 80-828 are affirmed and case 80-888 is dismissed.
AFFIRMED, case 80-828.
DISMISSED, case 80-888.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.