Clark v. Slayton
| Decision Date | 31 July 1885 |
| Citation | 1 A. 113,63 N.H. 402 |
| Court | New Hampshire Supreme Court |
| Parties | CLARK v. SLAYTON. |
In Equity.
Mr. Fellows, for plaintiff.
Burnham & Brown, for defendant.
An action at law is in general regarded as commenced, so as to avoid the statute of limitations, when the writ is completed with the purpose of making immediate service. But where there is no intention to have it served, or it cannot be served, until some further act is done, the action is not deemed to be commenced until such act is performed. Robinson v. Burleigh, 5 N. H. 225; Graves v. Ticknor, 6 N. H. 537; Hardy v. Corlis, 21 N. H. 356; Mason v. Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60. The same rule is applicable to suits in equity. Leach v. Noyes, 45 N. H. 364. A bill in equity must be filed in the clerk's office, and an order of notice obtained, before it can be served upon the defendant. Rules 11 and 13. The date of the filing is, therefore, the earliest time which can be taken as the commencement of the suit. The plaintiffs action is barred by the statute of limitations.
This result makes it unnecessary to consider other questions raised by the case. Exceptions overruled.
ALLEN, J., did not sit; the others concurred.
To continue reading
Request your trial
-
Int'l Paper Co. v. Commonwealth
...See, for instance, Farmers' Loan & Trust Co. v. Lake Street Ry. Co., 177 U. S. 51, 60, 20 Sup. Ct. 564, 44 L. Ed. 667;Clark v. Slayton, 63 N. H. 402, 1 Atl. 113. But these expressions have not been used commonly with reference to the simple filing of a bill in equity in its effect upon the ......
-
Hoyt v. Nick, 6191
...cause of action was not barred by the statute of limitations. RSA 508:4; Brewster v. Brewster, 52 N.H. 52, 60 (1872); Clark v. Slayton, 63 N.H. 402, 1 A. 113 (1885); Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156 (1958). Our dismissal of the plaintiff's suit for failure to seasonably notify......
-
Connecticut Mutual Life Ins., Co. v. Merritt-Chapman & Scott Corp.
... ... commenced at the time of the filing of the bill. Sheridan ... v. Cameron, 65 Mich. 680, 32 N.W. 894; Clark v ... Slayton, 63 N.H. 402, 1 A. 113; Collins v. North ... British, etc., Ins. Co., 91 Tenn. 432, 19 S.W. 525. In ... Greenwood v. Warren, 120 ... ...
-
Desaulnier v. Manchester School Dist., 94-292
...1118; Mason v. Cheney, 47 N.H. 24, 25 (1866). Third, if the writ "cannot be served until some further act is done," Clark v. Slayton, 63 N.H. 402, 402, 1 A. 113, 113 (1885) (emphasis added), the suit commences when that act is The school district is unable to rebut the presumption that Desa......