Berghuis v. Korthuis

• Decision Date: 03 June 1949
• Docket Number: 34880.
• Parties: BERGHUIS v. KORTHUIS.
• Court: Minnesota Supreme Court

37 N.W.2d 809

228 Minn. 534

BERGHUIS v. KORTHUIS.

No. 34880.

Supreme Court of Minnesota

June 3, 1949

Syllabus by the Court.

1. The period fixing the time within which a right of action for wrongful death under M.S.A. s 573.02 may be exercised is not an ordinary statute of limitations; it conditions the right.

2. Section 541.12 is applicable to an action under the death-by-wrongful-act statute, and under the facts of this case it is Held that the action was commenced within two years after the act or omission.

3. The sheriff of the county where the accident happened and in which defendant was a resident at the time of the fatal accident was a 'proper officer for such service' under s 541.12.

Appeal from District Court, Kandiyohi County; C. A. Rolloff Judge.

Lauerman & Pfeiffer, Olivia, for appellant.

Reyerson & Comer, Hutchinson, for respondent.

MAGNEY Justice.

Plaintiff appeals from the order sustaining defendant's demurrer to plaintiff's original complaint and from the order sustaining defendant's demurrer to plaintiff's amended complaint. As an amended pleading supersedes the original and is to be construed as the only one interposed in the case (5 Dunnell, Dig. & Supp. s 7706), no consideration will be given to the order sustaining the demurrer to the original complaint.

The amended complaint charges that on April 14, 1946, in the village of Prinsburg, Kandiyohi county, Rosalia Berghuis three years of age, was struck by an automobile negligently operated by defendant, and died within a few minutes thereafter. The action was brought under the death-by-wrongful-act statute. M.S.A. s 573.02. The complaint also alleges that on April 8, 1948, plaintiff delivered the summons and complaint to the sheriff of Kandiyohi county for service on defendant; that on April 10, 1948, the sheriff attempted to do so by leaving a copy of said summons and complaint at the home of defendant's mother in the village of Prinsburg, and thereupon he made the usual return of service; that on May 29, 1948, and within 60 days from the commencement of the action, defendant was personally served with summons and complaint at the village of Prinsburg; that at the time of the accident, and for almost a year thereafter, defendant was a resident of Prinsburg, but that since March 1947, defendant's residence has been Kansas City, Missouri; that at the time the summons and complaint were delivered to the sheriff for service plaintiff believed that defendant's residence was in the village of Prinsburg at the home of his mother, where he resided at the time of the accident and for a long time afterward. The record shows that the individual who made the personal service on defendant on May 29, 1948, made an affidavit of personal service. The record also shows that defendant made a motion to have the purported service of April 10, 1948 quashed and set aside, which, on July 10, 1948, by order of court, was done. Defendant interposed a demurrer to both the original complaint and the amended complaint, without waiving the special appearance to set aside the service of summons and complaint made on April 10, 1948. As stated, the demurrers were sustained.

1. Section 573.02 of the so-called death-by-wrongful-act statute reads in part as follows:

'* * * The action may be commenced within two years after the act or omission.' This period fixing the time within which the right of action for wrongful death may be exercised is not an ordinary statute of limitations. It is considered a condition precedent to the right to maintain the action, and the lapse of such period an absolute bar. It conditions the right. Statutes suspending the operation of the statute of limitations under certain circumstances are inapplicable to an action for wrongful death. The above rules state the status of the law under our decisions. Rugland v. Anderson, 30 Minn. 386, 15 N.W. 676; Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N.W. 620, 104 Am.St.Rep. 674, 2 Ann.Cas. 150; Bond v. Pennsylvania R. Co., 124 Minn. 195, 144 N.W. 942; In re Estate of Daniel, 208 Minn. 420, 294 N.W. 465; Cashman v. Hedberg, 215 Minn. 463, 10 N.W.2d 388; see, also, 16 Am.Jur., Death, s 168.

2-3. Section 541.12 reads as follows:

'An action shall be considered as begun against each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him, Or is delivered to the proper officer for such service; but, as against any defendant not served within the period of limitation, such delivery shall be ineffectual, unless within 60 days thereafter the summons be actually served on him or the first publication thereof be made.' (Italics supplied.)

In the instant case, the statutory two-year period expired on April 14, 1948. Unless the provisions of s 541.12 are applicable here, plaintiff's action is barred. The summons and complaint were delivered to the sheriff of Kandiyohi county on April 8, 1948--thus within two years of the accrual of the action. If the sheriff of Kandiyohi county is a 'proper officer for such service', in the words of the statute, and if s 541.12 applies to an action brought under the death-by-wrongful-act statute, this action was begun within the fixed time.

The accident took place in Kandiyohi county, and at the time of the accident and for almost a year thereafter defendant was a resident of that county. When the summons and complaint were delivered to the sheriff for service plaintiff was of the opinion that defendant was still a resident of the county. Unless the sheriff of Kandiyohi county was 'a proper officer for such service', then no such officer was to be found in the state. In our opinion, the sheriff was a proper officer under the statute. Since in our opinion the sheriff of Kandiyohi county was a...