United States v. Eddy, 28 F. 226

United States v. Eddy

28 F. 226 | U.S. Cir. Ct. | 1885

Matthews, Justice,

made the following order, in which Welkeb, J., concurred:

The motion heretofore made in this case by defendants’ counsel to set aside the service of the summons dated May 15,1885, is granted on the ground that the said summons was improvidently and irregularly issued, the petition not, at the time the said summons was issued, having been filed in the office of the clerk of said court at Toledo, where alone said suit could by law be brought.

(June 30, 1886.)

An alias summons having been issued June 1,1885, and the defendants having been duly served, the sureties answered that the account of the principal was settled, and his term of office expired, on the sixteenth day of May, 1882, and that the action was, as against them, barred by limitation. June 30,1886, the cause was submitted to WelkeR, J., who held that the action was not begun until the issue of the alias summons; and not having been instituted within three years after the close of the principal’s account, the sureties were discharged, under section 3838 of the Revised Statutes.

Judgmeni was rendered against the principal by default.

NOTE. Where an action has been commenced on a claim, no matter how defective it maybe, it stops the running of the statute of limitations. Smith v. McNeal, 3 Sup. Ct. Rep. 319. The mere filing of a complaint before a magistrate, charging the commission of felony, upon which no warrant is issued nor arrest made, is not such a commencement of the prosecution as will take the case out of the statute of limitations. In re Griffith, (Kan.) 11 Pac. Rep. 174. A suit in law is not commenced, so as to avoid the statute of limitations, until the writ is completed, with the intention o'f making immediate service. Clark v. Slayton, (N. H.) 1 Atl. Rep. 113; Robinson v. Burleigh, 5 N. I-I. 225; Graves v. Ticknor, 6 N. II. 537; Hardj' v. Corlis, 21 N. H. 356; Mason v. Chenev, 47 N. H. 24; Brewster v. Brewster, 52 N. H 60. A suit in equity is not commenced, so as to avoid the statute of limitations, until the bill is filed in the'clerk’s office. Clark v.Slayton, (N. H.) 1 Atl. Rep. 113; Leach v. Noyes, 45 N. H. 364. Where the statute provides that a suit is commenced by “ delivering of the original notice” to the proper officer, with intent that it be served immediately, the delivery to such officer of a “notice” in which the appearance day is left blank, and to be filled by such officer on service of the writ, is not such a commencement of an action as will bar the running of the statute of limitations. Phiiiney v. Donahue, (Iowa,) 25 N. W. Rep. 126. Where a creditor filed a petition, and on the same day a notice was put in the hands of t,he sheriff, who neglected to serve it, and delivered it to plaintiff’s attorney, who lost it, it was held that no action was commenced. Wolfenden v. Barry, (Iowa,) 22 N. W. Rep. 915.