Brock v. Francis

• Decision Date: 12 April 1913
• Citation: 89 Kan. 463,131 P. 1179
• Parties: BROCK v. FRANCIS[d1]
• Court: Kansas Supreme Court

131 P. 1179

89 Kan. 463

BROCK v. FRANCIS^[d1]

Supreme Court of Kansas

April 12, 1913

Syllabus

An injury occurred May 11, 1904. A petition in an action to recover damages was filed May 9, 1906, and a summons issued on that day was served May 11th; answer day being June 8th. June 7th the defendant filed a motion to set aside the service on the grounds that no summons had been issued and served as required by law, and that the pretended summons was void. July 7th this motion was confessed. Alias summons was issued October 1st, but service was not had until October 10th. Held, that the action was not begun until the date of the last-mentioned summons. The Bank of Topeka v Clark, 69 Kan. 864, 77 P. 92, distinguished.

Appeal from District Court, Montgomery County.

Action by J. T. Brock against George Francis. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

W. E Ziegler, of Coffeyville, J. H. Dana, of Denver, Colo., and Chas. Bucher, of Coffeyville, for appellant.

L. P. Brooks, of Cherryvale, for appellee.

OPINION

WEST J.

The only question presented is the statute of limitations, it having been agreed what the plaintiff should recover if entitled to recover at all. The record shows that on May 11, 1904, the plaintiff’s wife was injured in a runaway alleged to have been caused by the frightening of her horse by the defendant’s automobile. The petition to recover for loss of service of his wife, for medical expenses and for nursing, and for damages to the plaintiff’s horse and buggy was filed May 9, 1906. Summons was issued on the same date and served on May 11th; the answer day being June 8th. On June 7th defendant filed a motion to set aside the service which motion on July 7th was confessed. On the same date, July 7th, a præcipe for an alias summons was filed, another on August 29th, and another on October 1st. October 1st an alias summons was issued, which was served October 10th. October 29th a motion to set aside the service was filed, which motion was overruled May 4, 1907. The answer pleaded the statute of limitations generally with other defenses, and testimony was taken to show the presence of the defendant within the state.

It is insisted that after the confession of the motion to set aside service on July 7th subsequent issuance of service of summons amounted to the beginning of a new action, and not to the completion of service in one already begun. Also, that the defendant having pleaded the statute of limitations failed to prove the defendant’s presence in the state subsequent to January 1, 1906. It is suggested that the cause of action for loss of services, medical attention, and nursing did not accrue until long after May 11, 1904. But the injury which thus resulted occurred then and certainly the damage to the horse and buggy was sustained then, and we see no escape from the proposition that whatever cause of action the plaintiff had arose at the date of the collision. He could have sued the next day for injury to his property already suffered and for his loss of services and expenses which he could show he was to suffer by reason of the injury to his wife, "and whenever one person may sue another a cause of action has accrued and the statute begins to run." 25 Cyc. 1066; Calumet Elec. St. Ry. Co. v. Mabie, 66 Ill.App. 235; Birmingham v. C. & O. Ry. Co., 98 Va. 548, 37 S.E. 17; Jackson v. Emmons, 19 App. D. C. 250.

The testimony regarding the presence of the defendant within the state was by no means as clear as it might have been, but from the questions and answers taken together it may fairly be inferred that he was in the state substantially all the time up to August, 1906. The grounds of the first motion to set aside and quash the service were that no summons had been issued and served in the cause as required by law, and that the pretended summons issued was void. When this motion was confessed on July 7th, the case was in the condition of having a petition præcipe and summons on file under date of May 9th and nothing more. The service of the alias summons issued October 1st was attacked by motion to quash and set aside on the grounds that no summons had been issued and served in the case as required by law, and that the pretended summons and service were void. Although the only defect appearing on the face of the original summons was the failure to indorse the amount sued for, and although the same defect appeared on the alias issued October 1st, the motion to quash was overruled. The motion to quash the original summons having been made on the grounds already stated, and the motion having been confessed, it would seem that not until the 10th of October was any summons issued, at least any service made, which even the plaintiff claimed to have been good. No exception to the quashing of the original was taken, and, of course, none could have been taken for the motion was confessed. The defendant cites section 19 of the Civil Code (Gen. St. 1909, § 5612), especially the clause: "An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication of service of the summons within sixty days." This section was said at an early day to have application only to the statute of limitations. Dunlap v. McFarland, 25 Kan. 488, page 491.

In C., K. & W. R. Co. v. Com’rs of Chase County, 42 Kan. 223, page 227, 21 P. 1071, page 1072, it was held that a case must be considered as commenced at the date of the process actually served upon the defendant. In the opinion it was said: "Although actual jurisdiction of a defendant cannot be obtained without service of summons or original process upon him, nor until the service is actually made, yet, when the service is actually made, the case must then be considered as having been commenced at the date of the process served upon the defendant." In Insurance Co. v. Stoffels, 48 Kan. 205, page 209, 29 P. 479, page 481, the policy sued on limited the time of action to six months next after the fire. The petition was filed and the summons issued in time, but the summons and service were on motion set aside by the court, and afterward, the six months having expired, a new summons was issued and served, and this was held to be too late. In the opinion it was said: "There having been no objection to the action of the court below in setting aside said summons and service, and no exception thereto, and no appeal having been taken from the order of the court therein, the judgment of the court thus expressed settled the law of that case, and the plaintiff in error cannot now question it. After the summons and service thereof were set aside by the court below, there was nothing left in that court except the petition and præcipe, and the case stood then as though there never had been anything done therein except to file a petition and præcipe; and it will not be pretended that the mere filing of a petition and præcipe constitutes the commencement of an action." In Jones v. Warnick, 49 Kan. 63, 30 P. 115, it was held that an affidavit for service by publication must be filed, and the first publication made within 60 days from the date of filing the petition, in order for action in attachment to be begun, following Bannister v. Carroll, 43 Kan. 64, page 68, 22 P. 1012, page 1013, which pointed out the distinctions between lis pendens and the time when an action is begun, and wherein it was said that section 19 has no application, "except to fix an arbitrary time at which the statutes of limitation cease to run against the claim or demand of the petition."

In Modern Woodmen v. Bauersfeld, 62 Kan. 340, 62 P. 1012, a similar ruling was made. In the opinion it was said that the clause that an action shall be deemed commenced at the date of the summons which is served on the defendant or a codefendant united in interest with him declares when the action shall be deemed commenced and relates to the matter of commencement, and that section 58, providing that a civil action may be commenced by filing a petition and causing a summons to be issued thereon, provides how it may be commenced and relates to the manner of commencement, and that "it shall be deemed commenced at the date of the summons which is served upon the defendant."

In Green v. McCracken, 64 Kan. 330, page 333, 67 P 857, page 858, the action was brought on July 14, 1898, and summons issued for both defendants and returned July 21st non est as to one of them who was a nonresident. September 17th an affidavit for attachment was filed, and the order therefor was returned October 15th without showing service. November 15th an alias order was issued which was returned November 25th, "No property found." November 26th plaintiff filed an affidavit for garnishment summons which was issued to several garnishees, some of whom disclosed by their answers that they owed the nonresident defendant. ...