76 Iowa 563 | Iowa | 1889
— I. The defendants in their answer pleaded the bar of the statute of limitations. The abstract shows the facts involved in this defense to be as follows: An original notice for service was placed in the hands of the sheriff of the county wherein the action was commenced, before the expiration of the time in which the action could have been commenced, and before that time was served upon one of the defendants, who, it is alleged, claims some interest in the mortgaged property. After the expiration of that time, notices were issued and served upon the maker of the
II. We are to inquire whether the action is barred as to defendants served with notice after the time prescribed by the statute of limitations had fully run. An action commenced before the time prescribed by the statute has fully run may be prosecuted to judgment afterwards. Code, section 2532, is in this language: “The delivery of the original notice to the sheriff of the proper county, with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action.” The notice was delivered to the sheriff of the county in which the action was commenced. Is he “the sheriff of the proper county,” contemplated by the statute just quoted? We think he is. He is required to serve all notices upon defendants who reside in other counties. His return of “not found,” is evidence of .the fact that service could not be made in his county, and raises a presumption that the defendant is not a resident of his county. A plaintiff, upon commencing an action, may believe that the defendant is a resident of, or can be found in, the county. He is authorized to act upon this belief, and deliver the notice to the sheriff for service, whose return of “not found,” may be the plaintiff’s first intimation-of the absence of the defendant from the county. The time and manner of the commencement of the action, were the rule otherwise, would depend upon the plaintiff’s knowledge and belief of the whereabouts of the defendant. He brings his action in the right county, and has reason to belivees that the defendant may be found therein, and delivers the notice for service accordingly. The defendant suffers no prejudice,
Affirmed.