This is аn appeal on the original record from an order of the trial court sustaining defendant in error’s Motion to Quash аnd Plea to the Jurisdiction. The parties will be referred to as they appeared in the trial court.
*? FACTS
Plaintiff’s petition alleged facts pertaining to a certain automobile accident that occurred on December 20, 1961. The рetition was filed and summons was issued on December 20, 1963. A return on said summons was filed on December 30, 1963, disclosing defendant “not found”. On Jаnuary 16, 1964, an alias summons was issued and same was served on the defendant January 17, 1964. On February 4, 1964, defendant filed his motion to quash and plea to the jurisdiction and moved the court to quash, set aside, and hold for naught the summons and purported service thеreof for the reason the court had neither venue nor jurisdiction over the defendant and that the summons was not issued, served and returned according to law. Defendant filed with said motion and plea an affidavit and certain portions оf a deposition in support of his motion and plea to the effect that defendant did not live at the placе designated in the original summons and that plaintiff’s counsel knew this when the action was filed and summons was issued.
Apparently relying uрon the provisions of Title 12 O.S.1961, Sec. 97, the trial court found that on December 20, 1963, when plaintiff caused the original summons to bе issued, the same did not constitute an attempt to commence the action faithfully, properly and diligently to prоcure service because plaintiff’s counsel knew defendant did not live at the place designated in the summons; and that the statute of limitations did in fact run on the cause of action on December 21, 1963, and the purported service of summons on defendant on January 18, 1964, was ineffective.
Based upon the above findings the trial court sustained defendant’s mоtion to quash and plea to the jurisdiction.
CONCLUSION
The record is quite clear that in asserting his motion to quash and plea to the jurisdiction, defendant relied upon his contention that plaintiff had not faithfully, properly and diligently endeavored to procure service of summons on defendant on December 20, 1963, and plaintiff’s action was barred by the Statute of Limitation. It is equally clear, that the trial court’s order sustaining defendant’s motion and plea was based on the Statute of Limitatiоn after finding that plaintiff had not faithfully, properly and diligently endeavored to procure service of summons on defendant on December 20, 1963. In other words, defendant’s motion and plea and the trial court’s order sustaining the same were bаsed on the proposition that since plaintiff had not faithfully, properly and diligently endeavored to procurе service of summons on defendant on December 20, 1963, plaintiff’s action was barred by the Statute of Limitation when servicе of the alias summons was had on January 17, 1964. Therefore, the issue presented is not whether defendant was properly served with summons on January 17, 1964, if plaintiff had not faithfully, properly and diligently endeavored to procure service on defendant on December 20, 1963; but whether the trial court committed error in sustaining the motion to quash and plea to the jurisdiction on the grounds that the Statute of Limitation barred the action at the time it sustained such motion and plea. Stated in anothеr way, is the Statute of Limitation placed in issue by a motion to quash and plea to the jurisdiction.
Title 12 O.S.1961, Sec. 97, provides, intеr alia, that an attempt to commence an action shall be deemed equivalent to the commencement thereof, when the party faithfully, properly and diligently endeavors to procure a service; but such attemрt must be followed by service of summons within sixty days.
The above section defines the time when an action is deemed commenced when the question of limitation is involved. See Cowley-Lanter Lumber Co. v. Dow,
In Marks v. McCune Construction, Company, Okl.,
Title 12 O.S.1961, Sec. 272, prescribes what an answer shall contain and one of its items is new matter constituting a defense. In Straub v. Swaim, Okl.,
Plaintiff’s petition does not show on its face that his action was barred by the Statute of Limitation. Under these circumstances and the record, the only issue that could have been determined when the trial court sustained defendant’s motion tо quash was the sufficiency of the service of summons on January 17, 1964, as defendant’s motion did not or could not place in issue the question of limitation.
We therefore hold that the trial court committed error in sustaining defendant’s motion to quash and plea to the jurisdiction.
Defendant contends that this Court does not have jurisdiction of this appeal, but cites no authоrity to ■ sustain this contention. We find the appeal was properly lodged and this Court has jurisdiction to determine the cause.
In determining this cause, we have not considered or determined whether plaintiff did or did not faithfully, properly and diligently еndeavor to procure service on defendant on December 20, 1963, or whether the trial court did or did not acquirе jurisdiction of defendant by the service of January 17, 1964, as the only issue herein presented is whether the Statute of Limitation was placed in issue by the motion to quash and plea to the jurisdiction.
The order of the trial court sustaining defendant’s motion to quash and plea to the jurisdiction is reversed with directions to vacate such order and proceed in a manner not inconsistent with the views herein expressed.
Reversed with directions.