| Mo. Ct. App. | Jan 14, 1895
This is an action to enforce a special tax bill for street grading in Kansas City. Said tax bill was issued October 16, 1889, and the main defense is that suit thereon was not commenced within the two years’ limitation provided by the Kansas City charter. The cause was tried by the court sitting as a jury, resulting in a finding and judgment in plaintiff’s favor, and defendant appealed.
The following, taken largely from the defendant’s brief, we find to contain a fair statement of the case:
The petition in this suit was filed in the circuit clerk’s office on October 15, 1891, but the summons was not actually made out, signed and sealed by the clerk until October 23, 1891, and was not delivered to the sheriff until October 26, 1891. This failure of the clerk to issue the summons upon the filing of the petition was caused by certain instructions given to him by plaintiff’s attorney, when the petitions were filed. The chief deputy clerk testified that, when plaintiff’s attorney filed this petition, along with twenty others, he instructed him, the deputy, not to issue on them;
There was evidence by two other witnesses (attorneys who went to the clerk’s office and examined the papers at different dates, from October 17-20) that the words “wait for orders- to issue” were indorsed on the papers so filed on the 15th. And on the twenty-third day of October, when plaintiff’s attorney brought in the petitions, or copies to be served, these indorsements were changed from, “wait for orders to issue” to “wait for orders to deliver to sheriff.” This presumably was done at the instance of plaintiff’s attorney, as it seems to have been his contention that the orders were, not to delay the making out the summons in the cases, but to delay the delivery thereof to the sheriff. The defendant, upon this branch of the case, requested the two following instructions, which were refused:
“3. If you believe from the evidence that the summons in this case was withheld from the sheriff until after October 16, 1891, by order of the plaintiff’s agent and attorney, you must find for the defendant.
“4. The court declares the law to be that under the pleadings and evidence the verdict must be for the defendant.” v
I. A critical examination of the evidence adduced at the trial of this cause establishes without question, or real contradiction, the substantive fact, to wit: that plaintiff’s attorney in charge of this and the other twenty suits, on October 15, 1891, lodged the original papers thereof with the clerk of the circuit court, with instructions not to issue process thereon till further orders from said attorney. It is immaterial whether the instructions were to delay making out the writs of summons (as was the evident understanding of the clerk) or whether the instructions were simply to prepare the writs for service, and then ivithhold these from the sheriff
Recalling. dates, it will be observed that the tax bill in suit was issued October 16, 1889, and the two years’ charter limitation for continuance of the lien expired with October 15, 1891; and unless, therefore, suit was legally commenced on that day, then this action is barred. The case, then, is this: Was this action legally commenced on October 15, when plaintiff’s attorney deposited the petition with the clerk, with instructions not to issue till further ordered? Or, was it first brought on -the twenty-third of October, when the restriction was removed and writs ordered out? If the latter was, in legal effect, the true date of commencing the action, then it was too late, the statutory lien was lost, and the action barred by the two years’ limitation.
Our statute, section 2013, Revised Statutes, 1889, provides that suits may be instituted in courts of record, first by filing in the office of the clerk of the proper court a petition followed or accompanied by the voluntary appearance of the defendant, or, second, “by filing such petition in such office, and suing out thereon a writ of summons against the person * * * of the defendant.” Then follows the amendment of 1889, not necessary here to repeat, and which, according to a decision of the supreme court, has added nothing to the force, meaning or effect of the section. Lumber Co. v. Wright, 114 Mo. 326" court="Mo." date_filed="1893-02-27" href="https://app.midpage.ai/document/south-missouri-lumber-co-v-wright-8010814?utm_source=webapp" opinion_id="8010814">114 Mo. 326. On the fore
As to what shall be done in order to institute an action, so as to stop the running of the statute of limitations, the rule is not uniform in the various states or jurisdictions. In some, the mere filing of the petition is held to be sufficient; in others, the writ shall be made out and placed in the hands of the sheriff, or other officer entrusted with service; while in some, actual or constructive service on the defendant is required. But, “whatever act is to be taken as the commencement of
In Seever v. Lincoln, supra, it was said: “When a writ is made provisionally and delivered to an officer with instructions that it is not to be used until after a certain time, or the happening of a certain event, the action can not be considered as commenced until the arrival of the time, or the happening of the event.” To the same effect is Mason v. Cheney, supra, where it was held, “that, although the writ be completed and put into the hands of an officer, yet if he be directed not to serve it until after a certain act- be done, such as a demand upon the defendant and a refusal, the suit will not be regarded as commenced until after such act is done,” citing a large number of cases. “These cases go upon the ground that although the writs were completed, there was no present intention to serve them until some other act was done, which might, in fact, render it unnecessary to make service at all.” So in Burdick v. Green, supra, it was said: “We do not think it is indispensably necessary, in such eases, to prove an actual delivery of the writ to the sheriff, provided it be shown that it was actually made out and sent to the sheriff * * * with a Iona fide and absolute intention of having it .served. But such intention must be positive and unequivocal.” Judge Cooley, in Hotvell v. Shepard, supra, uses this language: “The mere filling out of a summons, which is then left in the justice’s office until the return day, or which is taken by the plaintiff and retained in his own custody, is not the commencement of a suit. The writ must not only be made out, but it must be issued with the intent that, if practicable, it shall be served.”
The very basis on which the decisions in this state (holding the mere filing of the petition the commencement of an action) rest, is, that the deposit thereof with the clerk serves as a praecipe, or demand for issue of the writ. The statute provides that suit is begun “by filing such petition in such office and suing out thereon a writ of summons, etc.” Piling the petition is a constructive demand for the issue of a summons against the defendant. But this constructive demand becomes nullified, if the plaintiff instruct the clerk not to issue process, or not to give it into the hands of the sheriff. In Gostine v. Thompson, 61 Mo. 471" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/gosline-v-thompson-8005209?utm_source=webapp" opinion_id="8005209">61 Mo. 471, it was said, that a deposit of the petition “put in motion the machinery of the. law;” that this Avas all the plaintiff could do, and such filing ought, therefore, to be regarded as the commencement of the 'action. But the force of this simile is lost, if plaintiff, of his own volition, stop the operation of the machine. And he ought not to be allowed, in that event, to contradict the fact and declare the law’s machine to be in motion, when he had put it at rest.
Out position in no wise conflicts with Lumber Co. v. Wright, 114 Mo. 326, and which seems so confidently
Our conclusion, then, is that the facts in this case clearly show that this action was not commenced within the meaning of the law, until several days after the expiration of the two years’ limitation; that thereby the lien of the tax bill was lost; and 'that on the undisputed facts a judgment ought to have been entered for the defendant.
Judgment reversed.