On Sеptember 21, 1971 appellant Selby filed a tort action against appellees arising out of an occurrence on September 3, 1969. The superior court granted the motion of appellees for summary judgment and dismissed the action. The Court of Appeals affirmed the decision of the superior court, Selby v. Karman,
The sole question presented by this appeal is whether the statute of limitations barred the claim of appellant.
*523 Appellant concedes that the action was • filed some two years and 18 days after the cause of action accrued which wоuld be a bar to the action under A.R.S. § 12-542 providing that such actions must be brought within two years of the occurrence. Appеllant contends that the statute was tolled for 52 days by reason of the several absences of the appellees from the state during the period. Appellant maintains that the action was filed timely if the 52 days is deducted from the total time between the accrual of the claim and the filing of the action.
A.R.S. § 12-501 provides:
“When a person against whom there is a cause of action is without the state at the time the cause of action accrues or at any time during which the action might have been maintained, such action may be brought against the person after his return to the state. The time оf such person’s absence shall not be counted or taken as a part of the time limited by the provisions of this chapter.”
There is no question that the appellees were residents of Pinal County, Arizona for some considerablе period, and there is nothing in the record which indicates that they couldn’t have been personally served with process during the two-year period with the possible exception of the periods when they were out of state on vаcation or business — a total of 52 days.
It is the contention of appellant that the temporary absences frоm the state by a resident are not counted as a part of the time limitation within which an action must be brought. In support оf his position he refers us to Connor v. Timothy,
“We here and now unequivocally hold that successive absences may be aggregated and toll the statute to the extent of their total.”63 Ariz. at 186 ,160 P.2d at 338 .
The Court in Western Coal specifically rejected the argument that a resident should not be considered for the purposes of the tolling stаtute if he could have been served notwithstanding his absence.
Approximately 20 years after the
Western Coal
case, this Court in Phillips v. Anchor Hocking Glass Corporation,
According to the rule announced in Phillips and followed in Hawkinson Tire Co., a nonresident defendant is not “without the statе” or “absent” within the meaning of A.R.S. § 12-501 if the defendant can be served with process for in personam jurisdiction; on the other hand the rule stated in Western Coal is that a resident is absent within the meaning of A.R.S. § 12-501 during temporary absences even if he could be served with prоcess and in personam jurisdiction obtained. The decisions are in conflict in the proper construction of thе terms of A.R.S. § 12-501.
The appellant argues that service of process should not be considered in determining the meaning оf the terms in A.R.S. § 12-501. He points out that the filing of the complaint stops the running of the statute of limitation, not the service of the complaint. This, of course, has long been the rule in Arizona. Gideon v. St. Charles,
We believe the rule announced in Phillips v. Anchor Hоcking Glass Corp., supra, to be more in harmony with the purpose and intent of the statutes, and we, therefore, hold that the terms “without the state” and “absence” as used in A.R.S. § 12-501 mean out of the state in the sense that service of process in any of the methods authorized by rule or statute cannot be made upon the defendant to secure personal jurisdiction by thе trial court.
In the case at issue the record is clear that the appellees were residents of the county before the accrual of the cause of action; continued to reside within the county thereafter; cоntinued a professional practice in the area, and the only periods of absence from the state were the business trips and vacations referred to in the answers to interrogatories. The appellant has failed to show any reason why the appellees could not have been served with process in any of the appliсable methods provided in Rule 4(d) or (e) Rules of Civil Procedure. With the matters of record presented to the trial court by the motion for summary judgment, the trial judge properly granted the motion and dismissed the action because it was barred by the statute of limitations.
Judgment affirmed.