Tate v. Jacobs

47 Mo. App. 218 | Mo. Ct. App. | 1891

Ellison, J.

This is an action for damages which falls within the five-year period of the statute of limitations. The plaintiff brought the action within that period. He suffered a voluntary nonsuit, and more than one year" thereafter, but within the five years, brought the present action for the same cause. The defendant’s plea of the statute of limitations was sustained by the circuit court, and the plaintiff appeals.

The defendant’s contention is that, notwithstanding the five-year period had not expired when the last suit was instituted, yet, since plaintiff failed to recommence such action within one year after his nonsuit, it is barred under section 6784, Revised Statutes 1889, which reads as follows : “If any action shall have been" commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or after a verdict for him the judgment be arrested, or. after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or - such judgment arrested or reversed.”

This section is known as a saving clause to the statute of limitations. It is so understood by text-writers. Wood’s Lim., secs. 293, 296; Angelí," Lim., sec. 322. And it covers voluntary as well as involuntary nonsuit. Shaw v. Pershing, 57 Mo. 416. We have no doubt, whatever that this statute was not intended in any event to curtail the period which is prescribed by the general limitation act. The fact that -a party elects to bring his action the day it accrues ought not to deny him the usual period of limitation ■simply because he suffered a nonsuit or reversal of his judgment within the period. The statute quoted is to save an action otherwise barred. It is not called into active force till the period of limitation has run. It is not needed till then. It was enacted to extend the period of limitation in the instances named therein, and will not bar an action brought within the general period of limitation for such action. The earnest effort of counsel for defendant has failed to impress us with his view of the matter. The judgment is reversed, and the cause remanded for trial on the merit 3.

All concur.