Askwith v. Ellis, 5352

• Court: Supreme Court of Utah
• Citation: 38 P.2d 757,85 Utah 103
• Decision Date: 07 December 1934
• Docket Number: 5352
• Parties: ASKWITH v. ELLIS et al

38 P.2d 757

85 Utah 103

ASKWITH
v.
ELLIS et al

No. 5352

Supreme Court of Utah

December 7, 1934

Rehearing Denied January 7, 1935.

Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.

Action by Anna Askwith against Merriman H. Ellis and others. From an order dismissing the action, plaintiff appeals.

REVERSED AND REMANDED, with directions.

Wm. L. Beezley, of Salt Lake City, for appellant.

J. W. Stringfellow, of Salt Lake City, for respondents.

LARSON, District Judge. STRAUP, C. J., and FOLLAND, EPHRAIM HANSON, JJ., and DILWORTH WOOLLEY, District Judge, concur. ELIAS HANSEN and MOFFAT, JJ., being disqualified, did not participate.

OPINION

[85 Utah 104] LARSON, District Judge.

This is an appeal from an order of the district court of Salt Lake county sustaining a demurrer to plaintiff's amended complaint. The record discloses that in April, 1923, plaintiff filed an action against defendants in the district court of Salt Lake county seeking a judgment on a promissory note dated May 1, 1922, and for the foreclosure of a real estate mortgage given to secure the same. On this original complaint no summons was issued or served, but on April 24, 1923, plaintiff and defendants entered into a written agreement whereby, in consideration of certain payments then made and certain stipulated monthly payments to be made by the defendants, plaintiff agreed to stay proceedings in court and dismiss the action without costs to defendants, provided they met all stipulated payments. The agreement concluded:

"Said Anna Askwith may at her option, at once proceed with said foreclosure, in default being made in any monthly payment, as though no extension had been granted."

Defendants immediately defaulted, making no further payments, and nothing further was done in the matter until November 24, 1931, when plaintiff filed an amended complaint, [85 Utah 105] setting up the making of the extension agreement and its breach. Summons was then issued and served upon defendants. Defendants then filed what they denominated a special motion in which they "move the court to strike from the records and from this cause said amended complaint as sham, surplusage, and spurious."

The court denied the motion to strike the amended complaint, but held that it was not an amended complaint, but that it was the commencement of a new action, directed that it be given a new filing number, and ordered plaintiff to pay a new filing fee. Defendants then demurred to the new complaint on the ground that the cause of action was barred by the statute of limitations. The court sustained this demurrer, plaintiff refused to plead further, the action was ordered dismissed, and plaintiff appeals from such order.

If this action was commenced on the 24th day of November, 1931, when the paper styled "Amended Complaint" was filed and summons issued and served, as the trial court held, then there can be no question but that [38 P.2d 758] the statute of limitations had run and the demurrer was properly sustained. The "Amended Complaint" showed on its face that the cause of action arose May 1, 1924; that no payments had been made since April 24, 1923, and nothing is pleaded to toll the running of the six-year statute of limitations on a written instrument, which period expired May 1, 1930. The question, therefore, which is decisive of this action, the ruling of the trial court upon which this action turns is: Was this action pending from the filing of the original complaint in 1923, or did it commence with the filing of the "Amended Complaint" in November, 1931? The action originated when the first complaint was filed in 1923 had not been dismissed, no summons had been issued thereon, and no appearance thereunder made by the defendants. Except for the making of the written extension above referred to, which was not filed with the court, nothing was done except to file the original complaint, until the [85 Utah 106] "Amended Complaint" was filed in 1931 and summons issued thereon. The trial court held that, since no summons was issued or served under the original complaint, and since, under the provisions of Comp. Laws Utah 1917, § 6542, which is R. S. Utah 1933, 104-5-5, and which reads as follows: "If an action is commenced by the filing of a complaint with the clerk, summons must issue thereon within three months from the date of filing. If a summons is returned without being served upon any or all of the defendants, another summons may be issued and served at any time within one year after the filing of the complaint," a summons must issue within three months after filing the complaint, and must be served within one year, therefore, since no summons could thereafter be issued and served, the court could acquire no...