67 N.J.L. 48 | N.J. | 1902
The opinion of the court was delivered by
In an action brought to recover damages under the Death act the defendant, a foreign corporation, pleaded specially that the action had not been commenced against it within twelve calendar months after the death of the plaintiff’s intestate, which occurred upon the 14th day of December, 1900. The postea narrates that as to this plea the jury found specially that upon December 14th, 1901, the writ of summons, tested December 12th, 1901, was delivered by the- attorney of the plaintiff to the sheriff of Hudson county, with instructions to serve the same later when advised by the plaintiff, and that such advice was not given to the sheriff until after the expiration of the time within which the action against the defendant could be commenced. The postea is given in full in the prefatory statement. Upon this motion for leave to enter judgment upon this postea the question is, was the action commenced against the defendant within twelve calendar months after .the death of the plaintiff’s intestate ?
In the opinion delivered by Chief Justice Hornblower, in Whitaker v. Turnbull, 3 Harr. 172, it is said: “That when a writ is issued out of the office of the clerk or of the attorney acting, as is usually the practice in this state (at least permissibly), as the agent or deputy of the clerk, in good faith, for the purpose of being served or proceeded on, and that purpose is not afterwards abandoned, it is, for all material purposes, the actual commencement of the suit.” This language has been approved in every subsequent opinion that has dealt with the subject, Chief Justice Beasley saying of it, in Lynch v. Erie Railroad Co., 28 Vroom 4: “This is'undoubtedly the rule of the old law.”
The present case differs from all that have preceded it in our reports in that in them the question arose upon writs that
.The question in this form is one of first impression in this court, and to that extent must be dealt with upon principles capable of general application.
At common law the commencement of a civil suit involved the concurrent action of the attorney who purchased the writ on behalf of his client and of the clerk who issued it on behalf of the court. Thus the “suing out,” as it was significantly called, of the original writ was a well-defined step in the process by which a defendant was brought into court. Therefore it was said by Chief Justice Beasley, in the case above cited: “At common law a suit was begun upon the purchase of the writ and that process implied the taking the writ out of the office for immediate service.” Most of the controversy that has arisen from our modern practice of allowing the plaintiff’s attorney to issue the process of the court as the agent of the clerk is due to the fact that, owing to the merger of these two previously distinct functions, the actual issuance of the writ has ceased to have the significance it had at common law and upon which the old rule was founded. The point to be determined is the same, but the method of its determination must be different. To harmonize the old rule of practice with the existing practice the parts previously played by the two distinct agencies should be so far recognized as to require that, the attorney for the plaintiff, when acting for the clerk, shall stand toward his own client and toward the actual bringing of the suit as he stood when at common law he had purchased the writ and taken it out of the office for immediate service.
This is the rationale of the rule; how this attitude of the attorney shall be evinced is the practical question. The act of placing the process in the hands of the proper officer for-
The rule dedueible from this course of decisions is, perhaps, best summarized in the language last quoted, viz., that a suit is begun when process, duly tested and issued, is actually put in motion for the purpose of being served.. Whatever be the phraseology, the point to be guarded is that the repose intended to be granted to defendants and to the public by statutes of limitation shall not be dependent upon either the will or the diligence of the party whose interests are adverse to the policy of the law.
When we come to apply this rule to the facts contained in
It remains to’consider whether this question was properly raised by plea, or whether, as was suggested upon the argument, it should have been brought before the court by a motion to set aside .the summons. I think that plea was the proper method. Not only is the analogy of the statute of limitations in favor of such pleading, but the frame of this remedial statute also leads to the same result. Indeed, the special limitation is so closely related to the statutory remedy given as to be a part of it; it is created solely with the object of qualifying the right of action. The remedy is given sub
The plaintiff is entitled to judgment.-