262 P. 232 | Wash. | 1927
The plaintiff, executrix of the estate of Emily G. Feller, deceased, seeks recovery from the defendants, Coleman and Feller, as executors of the estate of Ezra B. Feller, deceased, upon three past due promissory notes aggregating $450, executed and delivered to Emily G. Feller by Ezra B. Feller, and upon a claim thereon duly verified and presented to the *149 defendants as executors, which has been by them rejected. One of the defenses is, that the action has not been commenced within the time limited by law, in that the complaint was not filed in the superior court within thirty days following the notice of rejection of the claim given by the defendants to the plaintiff. Trial proceeded in the superior court for Snohomish county, sitting without a jury, and resulted in judgment denying recovery, and dismissal accordingly, sustaining this affirmative defense. From this disposition of the case in the superior court, the plaintiff has appealed to this court.
The controlling facts are not in dispute. Since the making of the notes, both the maker and payee have died, and the plaintiff and defendants, respectively, have become the duly appointed and qualified executrix and executors of their estates. The claim upon the notes was duly verified and presented by the plaintiff to the defendants; thereafter, on November 3, 1926, the defendants gave to the plaintiff due notice of their rejection of the claim; thereafter, on November 23, 1926, the plaintiff caused to be served upon the defendants a summons and complaint seeking recovery thereon; and thereafter, on December 14, 1926, the plaintiff filed the summons and complaint in the office of the clerk of the superior court for Snohomish county. Thus, it plainly appears that the complaint was not filed in the office of the clerk of the superior court until after the expiration of thirty days following the notification of the rejection of the claim.
[1] This filing of the summons and complaint, it is contended in behalf of the plaintiff, was the commencement of the action, while the service of the summons and complaint, it is contended in behalf of the defendant, was the commencement of the action, within the meaning of our statutes of limitation. The language *150 of our general statute upon that subject, referring to Remington's Compiled Statutes, §§ 155 and 167, is as follows:
"§ 155. Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute; . . ."
"§ 167. . . . An action shall be deemed commenced when the complaint is filed."
This court has repeatedly held that an action by a private party is deemed not to be commenced, so as to toll the statute, until the complaint is filed in the office of the court wherein it is sought to commence the action; notwithstanding the provision of Rem. Comp. Stat., § 220 [P.C. § 8432], relating generally to the manner of commencing civil actions, that "civil actions in the superior courts of this state shall be commenced by the service of a summons . . . or by filing a complaint with the county clerk as clerk of the court." Cresswell v. SpokaneCounty,
It is contended in behalf of the defendants that the words, "An action shall be deemed commenced when the complaint is filed," should not be held controlling in this case as to what constitutes the commencement of an action, because of the general provision of § 220, above quoted, touching the manner of the commencement of actions, and the special limitation of our probate code prescribed by Rem. Comp. Stat., § 1482 [P.C. § 9833], reading as follows:
"When a claim is rejected by either the executor, administrator, or the court, the holder must bring suit *151 in the proper court against the executor or administrator within thirty days after notification of the rejection, otherwise the claim shall be forever barred."
The argument is, that we should look to the language of § 220, relating generally to the commencement of actions, and not to § 167 of our general statute of limitation, as determinative of what constitutes the commencement of an action against an executor or an administrator upon a rejected claim. This contention was made, in substance, in Service v. McMahon,
"Appellant contends that the service of the summons and complaint upon some of the defendants was a commencement of the action within the meaning of the statute. Reference is made to the general practice act, Bal. Code, § 4869, [§ 220, Rem. Comp. Stat.], in support of appellant's view that service of the summons was a commencement of the action as is contemplated by the lien limitation statute. Turning, however, to the statute on the general subject of limitations, we find that Bal. Code, § 4807 [§ 167, Rem. Comp. Stat.], provides that `an action shall be deemed commenced when the complaint is filed.' It was held inCresswell v. Spokane County,
That decision seems to us, by analogy, to be exactly in point. However, we have another decision of this court which seems even more directly in point. In Farmers Merchants' Bank v. Lilly,
Some contention is made that observations by the writer of this opinion, at the conclusion of our opinion in Van Duyn v.Van Duyn,
[2] Some contention is made in behalf of the plaintiff rested upon Rem. Comp. Stat., § 170 [P.C. § 8177], reading as follows:
"If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of the time and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration."
This is a very old statute, first enacted in 1854 [Laws '54, p. 364] and embodied in the code of 1881, § 38, since which time it has remained unchanged, so far as express repeal or modification is concerned. However, in so far as that section had any force as a statute of limitation upon an action by any claimant against an executor or administrator upon a rejected claim, it has manifestly been superseded by the later probate limitation here in question.
The judgment is affirmed.
MACKINTOSH, C.J., FRENCH, MITCHELL, and TOLMAN, JJ., concur. *154