Allen v. Curry, KCD
| Decision Date | 03 July 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 568 S.W.2d 582 |
| Parties | Richard R. ALLEN and Diana J. Reed Allen, Plaintiffs-Appellants, v. Stanley W. CURRY, Jr., Defendant-Respondent. 29328. |
| Court | Missouri Court of Appeals |
John J. McFadden, Sr., Kansas City, for plaintiffs-appellants.
Thomas G. Kokoruda, George A. Barton, Kansas City (Shughart, Thomson & Kilroy, A Professional Corporation, Kansas City, of counsel), for defendant-respondent.
Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
The question is whether the court erred in its dismissal of plaintiffs' petition for damages for personal injuries on the ground it was barred by the 5-year statute of limitations, § 516.120, RSMo 1969. Affirmed.
On July 21, 1968, plaintiffs were injured when struck by an automobile operated by defendant at the intersection of Bannister Road and James A. Reed Road in Kansas City, Jackson County, Missouri.
On July 13, 1973, plaintiffs filed their petition, and summons was directed to defendant at 9206 Richmond Drive, Kansas City, Missouri. A non est return on the summons was made August 16, 1973.
On February 3, 1976, plaintiffs again directed summons to defendant at 9206 Richmond Drive in Kansas City and also caused alias summons to issue. On February 10, 1976, plaintiffs forwarded the alias summons by letter to Dallas, Texas, for service on "Stan W. Curry * * * on J. J. Pierce (or Pearce) Street in Dallas, Texas." A non est return was made on the Kansas City service March 3, 1976. On April 1, 1976, alias summons was again caused to issue for service at 1927 J. J. Pierce, Richardson, Texas. Service was accomplished on the alias summons April 19, 1976.
On May 5, 1976, defendant filed answer to plead, among other things, the bar of the statute of limitations; and on October 26, 1976, defendant filed motion to dismiss plaintiffs' petition and alleged that plaintiffs failed to exercise due diligence in effecting service of process and therefore allowed the statute of limitations to run in bar of their petition.
Defendant's answers to plaintiffs' interrogatories gave his residence as of July 21, 1968, as "Room 323, D. K. Martin Hall, Baylor University, Waco, Texas"; and his places of residence thereafter as:
As of October 15, 1976, Stanley W. Curry, Jr., resided at 1927 J. J. Pierce Drive, Richardson, Texas. At the time of the collision July 21, 1968, "I informed the investigating officer that I was a student in my fourth year of College at Baylor University in Waco, Texas and that I was visiting my parents * * * who resided at 9206 Richmond Drive, Kansas City, Missouri.
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Atkinson v. Be-Mac Transport, Inc.
...process. Failure to do so causes the limitations statute to speed on its way. Want v. Leve, 574 S.W.2d 700 (Mo.App.1978); Allen v. Curry, 568 S.W.2d 582 (Mo.App.1978). The question of whether due diligence has been exerted is to be decided on a case by case basis, with the outcome of one no......
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McReynolds v. Vawter, WD30991
...(13 months held unreasonable delay); Blanks v. Cantwell, 578 S.W.2d 349 (Mo.App.1979) (3 years held unreasonable delay); Allen v. Curry, 568 S.W.2d 582 (Mo.App.1978) (approximately 21/2 years held unreasonable delay). Cf. Votaw v. Schmittgens, 538 S.W.2d 884 (Mo.App.1976) (8 months delay he......
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...give deference to its finding of lack of due diligence. Blanks v. Cantwell, 578 S.W.2d supra, l.c. 350 (Mo.App.1979); Allen v. Curry, 568 S.W.2d 582, 584 (Mo.App.1978). Under the circumstances of this case, we hold that the trial court's ruling is not against the weight of the The trial cou......