Gorgen v. Nemaha County
| Decision Date | 28 December 1962 |
| Docket Number | No. 35295,35295 |
| Citation | 118 N.W.2d 758,174 Neb. 588 |
| Parties | William GORGEN, a minor by Clara Prince, his natural mother and next friend, Appellant, v. The COUNTY OF NEMAHA, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An action is commenced at the date of the summons served upon the defendant or on the date on which the defendant enters a voluntary appearance.
2. The plaintiff is required to file a praecipe stating the names of the parties to the action with demand that summons issue therefor.
3. Where the record shows that an action was not commenced within the time required by statute, the petition is subject to demurrer.
Schrempp & Lathrop, Henry C. Rosenthal, Jr., Omaha, for appellant.
Dwight Griffiths, Auburn, Donald Stanley, County Atty., Peru, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
This is an action against the County of Nemaha, Nebraska, for damages alleged to have been caused by a defective bridge. The petition alleged that the plaintiff, William Gorgen, a minor 18 years of age who appears by his next friend, was injured on July 30, 1960, when an automobile in which he was a passenger ran off of a bridge; that the plaintiff's injuries were caused by the negligence of the defendant in failing to provide a suitable bridge, in failing to warn motorists of the existence of the bridge, in failing to provide suitable guard-rails on the bridge, and in setting the bridge at an angle; and that the plaintiff was damaged as a result of his injuries. The trial court sustained a demurrer to the petition and dismissed the action. The plaintiff has appealed to this court.
The action is brought under section 39-834, R.R.S.1943, which requires that such an action be 'commenced within thirty days of the time of the injury or damage occurring; * * *.' The limitation of the time within which the action must be commenced applies to all persons without regard to any kind of disability. Swaney v. County of Gage, 64 Neb. 627, 90 N.W. 542. Where the record shows that the action was not commenced within the time required, the petition is subject to demurrer. Reliance Trust Co. v. Atherton, 67 Neb. 305, 93 N.W. 150, rehearing denied, 67 Neb. 309, 96 N.W. 218.
In this state a civil action is commenced by filing a petition and causing a summons to be issued thereon. Section 25-201, R.R.S.1943. Section 25-502, R.R.S.1943, provides: 'The plaintiff shall also file with the clerk of the court a praecipe stating the names of the parties to the action with demand that summons issue therefor.' Section 25-217, R.R.S.1943, provides in part: 'An action shall be deemed commenced, within the meaning of this chapter, as to the defendant, at the date of the summons which is served upon him; * * *.'
The mere filing of a petition and the issuance of a summons is not the commencement of an action; the summons issued must be served upon the defendant. Reliance Trust Co. v. Atherton, supra. The action is commenced at the date of the summons which is served upon the defendant. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108; Burlingim v. Cooper, 36 Neb. 73, 53 N.W. 1025. Where the defendant enters a voluntary appearance, the action is commenced on the date of the appearance. Hotchkiss v. Aukerman, 65 Neb. 177, 90 N.W. 949; Reliance Trust Co. v. Atherton, supra.
The record shows that the following took place on August 26, 1960. The plaintiff filed a petition, which alleged that the accident occurred on July 30, 1960, and a praecipe as follows:
Please issue Summons in the above entitled cause and deliver same to the Sheriff of said County;
Frank Clark--Nemaha
Adolph Kienker--Johnson
Schrempp & Lathrop
Attorney for Pltf.'
A summons was issued for service upon 'John W. Magor--Auburn,' 'Frank Clark--Nemaha,' and 'Adolph Kienker--Johnson,' and was served personally upon John W. Magor, Frank Clark, and Adolph Kienker.
Magor, Clark, Kienker, and the defendant all filed special appearances which were sustained on October 18, 1960. The plaintiff did not appeal from the orders sustaining the special appearances. On October 11, 1961, approximately a year later, the plaintiff filed a praecipe requesting that an alias summons be issued.
The record in this case shows that the...
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