13 F. Cas. 154 | U.S. Circuit Court for the District of Kansas | 1872
If this action is-to be deemed as having been commenced in August, 1867, when the original petition was filed, and the first summons was served in. the manner above stated, it is admitted that the same is not barred. On the other hand, if the suit is to be considered as commenced only when the second summons was served, to-wit, June 6th, 1870, then it is conceded by the plaintiff that this action is within the-operation of the limitation statutes of the state. The record shows that on the 17th day of August, 1867, the petition was filed and the summons was issued. The original Summons was in due form, and contained all the indorsements. The marshal made service of the summons, and returned that fact to the-court, and a judgment by default was entered at the return term, reciting that the defendant had been duly served. Two years afterward the defendant appeared, and the court, on the marshal’s amended return, showing that the copy of the summons which had been left at the residence of the defendant did not contain a copy of the in-dorsement of the amount for which judgment would be taken if the defendant failed to appear, set aside the judgment, ,on the ground, as the record of its action states, that no service of the summons was ever-made, and no appearance to the action had.
The justice of the plaintiffs’ demand not being questioned, and there being no claim that the defendant did not receive the copy of the summons before the return term, nor any claim that the judgment was taken for too much, it is plain that the order setting aside the judgment was not well considered;, but it was set aside upon the ground, not that ño service was ever made, but upon the technical one that the copy of the summons left for the defendant omitted the in-dorsement of the amount claimed by the
The defendant’s case is not within the purpose of the limitation enactment, which is to protect persons from stale claims. But here the plaintiffs brought suit in time upon a demand confessedly just and unpaid. If the defendant had appeared at the return term he would have had no defense on the merits, and no defense under the statute of limitations. He neglects to appear at court, waits until the statute period for the recovery of such claims has fully elapsed, and then applies to the court and suggests the defective service, made over two years before, and asks to have the judgment set aside. This being done, he asks the benefit of the statute of limitations, which had not elapsed when the suit was commenced. This position overlooks the philosophy or reason on which such legislation rests, which is the neglect or laches of the plaintiff to prosecute his suit. But whatever neglect there is in'this case is clearly the defendant’s. Besides there never has been any failure of the plaintiffs to recover upon “the merits” of their Claim upon which action was brought “within due time,” and therefore the plaintiffs are within the equitable or just provision of the legislation made for such cases. Rev. St. 186S, p. 634, § 23, quoted in the statement of the case.
Motion for new trial lenied, and judgment for plaintiffs. Judgment accordingly.