128 Mo. 1 | Mo. | 1895
The only question in this case is, what constitutes the commencement of an action, with reference to the limitation of time for bringing it.
The question arises on these facts:
December 2, 1892, Annie McG-rath was duly appointed nest friend of three minors. On the same
In the petition it is alleged that the father was killed, December 4, 1891, in St. Louis, by an engine and train of the defendant, and that his death resulted from the negligent operation of the engine and train by defendant’s servants in charge.
The particular negligence complained of is set forth in the petition; but it is not necessary to refer to it, further than to say that it purports to state a case for damages under chapter 49 (R. S. 1889).
After the filing of the petition, a summons was issued by the clerk, December 6, 1892. It was served upon defendant, December 13, 1892.
At the return term of the writ defendant demurred on the ground that it appeared on the face of the record that the suit “was not commenced until more than one year after the alleged cause of action accrued.”
The trial court sustained the demurrer. The plaintiffs declined to plead further. Judgment was then rendered for defendant, and plaintiffs appealed.
It will be seen that the petition was filed within one year from the death of plaintiffs’ father; but that the summons in the action was not issued within the year.
Defendant claims that the action was, therefore, in contemplation of law, not commenced within that period, which both parties concede as the term limited for bringing the action (R. S. 1889, sec. 4425).
Plaintiffs, on the other hand, contend that the filing of their petition was the commencement of the suit, so far as concerns any bar of limitation.
No technical objection is made to considering, in that form, the defense stated in the demurrer. Plain
The statute which governs the case was construed by this division of the court, in South Missouri Lumber Co. v. Wright (1893), 114 Mo. 333 (21 S. W. Rep. 811), in accordance with plaintiffs’ contention. But defendant attacks that ruling as unsound, and has submitted a forcible and interesting argument in so doing.
The section in question is not printed with exact verbal accuracy in the revised statutes.
The precise wording of the correct version, as on file in the office of the secretary of state, is as follows:
Sec. 12013. Suits, how instituted. Suits may be instituted in courts of record, except when the statute law of this state otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff’s cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second, by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. 11 The filing of a petition in a court of record or a statement or accou/nt before a court not of record and serving out of process therein shall be taken and deemed the commencement of a suit.”
(We have italicized the matter added by the revision of 1889; the rest of the section remains as before.)
Prior to the amendment in 1889, the section was supposed to have reached a comparatively settled construction on the point of present difference. It had been adjudicated that an action was commenced (as far as concerned a bar of limitation) upon the filing of the petition in a court of record. Dougherty v. Downey (1826), 1 Mo. 674; Hite v. Hunton (1855), 20 Mo. 286; Foster v. Breshears (1874), 55 Mo. 22; Gosline v. Thompson
But it appears to be thought that the change of language in 1889 should neccessarily be held to indicate an intent to change the construction theretofore given to that section.
The part that had been construed was, however, left untouched by the revision. The change consisted only of an addition. The addition related not. merely to courts of record, but to those not of record. In regard to justices’ courts, the statute law at the time provided, in express terms, that, unless the defendant appeared voluntarily, the action was to be deemed as commenced, “upon delivery of the writ to the constable to be served;” and the latter was required to note upon the writ the time of receiving the same, (R. S. 1889, sec. 6136, identical with section 2849, of 1879).
The present case does not require us to interpret the effect of the amendment in its bearing upon proceedings of courts not of record; and it is better to keep our commentary within the facts in judgment.
As the statute now stands, it is far from clear that the words “and serving out of process therein” can be considered to apply to proceedings in a “court of record.” In view of the existing statutes (above mentioned) in regard to justices’ proceedings, it is probable that those words were intended to apply to courts not of record only, and that the new matter was designed simply as a codification of the construction which had been already given to the prior law, as to courts of record.
The old section had been the subject of contradictory remarks, if not rulings. (See the cases above cited,- and also intimations to the contrary in Fenwick v. Gill (1866), 38 Mo. 525, and McKinzie v. Hill (1873), 51 Mo. 303.) And, though its meaning had come at
It is not strange or novel in jurisprudence to find an amendatory statute drawn to express in plain terms the judicial reading of the former law.
Many of the best efforts at codification of the substantive law have taken the form of enactments of existing rules, resting upon judicial decisions.
Under the old law it had been held that the filing of a petition in our procedure had like effect to the suing out of the writ under the common law practice. In both systems the real initial step in an action was regarded as its beginning, as against the statute of limitations.
In the absence of directions to the contrary, the filing of a petition amounts to an order to the clerk to issue process in the cause.
Hence such filing was rightly held to be, in effect, a “suing out” of the writ, as contemplated by the old section, 2013. But, as the plaintiff could not always direct the movements of the clerk in issuing process, it was also justly considered that the former could not be held answerable for any delay on the clerk’s part in setting the legal machinery into full action, after the plaintiff had taken the proper initiative.
To avoid the barrier of limitation, the earliest move in the proceeding was considered and held to be its legal commencement, in accordance with a general principle of the common law demanding a liberal and favorable construction of a law, as against a forfeiture of rights.
When it came to considering an action from other standpoints of legal observation, as, for instance, with reference to applying the law of Us pendens to the rights of strangers, the first move of the plaintiff in filing the
In the present case we are dealing solely with the question of the proper mode to commence the proceeding, with reference to the law of limitation; and our comments should be taken as applicable only to that phase of the subject.
The law on this point differs widely in other jurisdictions. It has been very generally regulated by local statutes. 1 Encycl. of Pleading and Practice, 119. So we derive but little aid from precedents in other states.
After due reconsideration of the subject, we are of opinion that the prior ruling of this division was correct; and we adhere to it.
It follows that the judgment should be reversed and the cause remanded. It is so ordered.
