Conrad v. McCall

• Decision Date: 16 December 1920
• Docket Number: No. 2723.,2723.
• Parties: CONRAD v. McCALL.
• Court: Missouri Court of Appeals

226 S.W. 265

205 Mo. App. 640

CONRAD v. McCALL.

No. 2723.

Springfield Court of Appeals. Missouri.

December 16, 1920.

Rehearing Denied January 1, 1921.

Appeal from Circuit Court, Stone County; Fred Stewart, Judge.

Action by Darius Conrad against O. S. McCall. Judgment for plaintiff, and defendant appeals. Reversed.

J. S. Davis, of Cassville, J. A. Sturges, of Pineville, and G. W. Thornberry, of Galena, for appellant. "

D. S. Mayhew, of Monett, and Rufe Scott, of Galena, for respondent.

STURGIS, P. J.

By this suit plaintiff seeks to recover damages for an alleged assault made on him by defendant and his brother T. D. S. McCall. The assault occurred in Newton county, Mo., on September 28, 1914. T. D. S. McCall was then a resident of Newton county and the present defendant was then and thereafter a resident of McDonald county. The present suit was commenced in McDonald county January 2, 1917, and service was there had on defendant. The case then went to Stone county on change of venue, where trial was had resulting in a verdict and judgment for plaintiff. The defendant appealed, and the case is properly here for review.

It will be noticed that this suit was not commenced till more than two years after the cause of action accrued. The suit was therefore apparently barred by the two-year statute of limitations, which is applicable to this cause of action. Section 1891, R. S. 1909. This defense was interposed in the trial court and is the sole point relied on for reversal. The plaintiff sought to ward off this blow by pleading facts which would bring the case within the provision of section 1900, It. S. 1909, providing that —

"If any action shall have been commenced within the times respectively prescribed in articles 8 and 9 of this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed."

The facts relative to this defense as shown by this record are that plaintiff commenced suit in Newton county, Mo., against both this defendant and his brother T. D. S. McCall by filing his petition alleging that both of them assaulted him in Newton county on September 29, 1914. That suit was filed in Newton county December 1, 1915, some 14 months after the alleged assault, but within the limitation period. Summons was issued returnable to the February term, 1916, of that court, but no service was had on either defendant. An alias summons was then issued in that court returnable to the June term, 1916, of that court, on which a non est return was likewise made. Likewise at the June term, 1916, a pluries summons was issued returnable to the October term, 1916, of that court, and again no service was had. At the October term (October 12, 1916), the circuit court of Newton county made an order "dismissing the case for failure of plaintiff to prosecute same." The real status of the matter was therefore that, as no service had been had on any defendant and no voluntary appearance entered, there was no case before the court. The reason why no service was had on either defendant in the Newton county case was that T. D. S. McCall, who resided in Newton county at the time of the assault, left that county some four months before the suit was filed there and never returned, and this defendant was at all times a resident of McDonald county. The evidence shows that T. D. S. McCall left Newton county August 7, 1915, in conjunction with a certain widow who had sold some property, and that his whereabouts thereafter was unknown. It is also in evidence that plaintiff, who lived in the same town with T. D. S. McCall, knew of these facts both at the time he commenced his suit in Newton county and when, at his instance, the alias and pluries writs of summons were issued at later terms of court.

Under these facts we have reached the conclusion that plaintiff's present suit filed in McDonald county, where defendant resided at all times, is not saved from the bar of limitations by reason of his prior attempted suit in Newton county. In the first place, we think that it cannot be properly said that plaintiff "suffered a nonsuit" in Newton county. The statute has been liberally construed to include voluntary nonsuits or dismissals of pending cases; but where the court has acquired no jurisdiction of the named defendant and is powerless to do anything, except perhaps to clear its docket of a pretended case not properly before the court, it can hardly be said that there is a pending case. The action of that court in dismissing that case for want of prosecution was, in effect, striking it from the docket as that is all the court could do. There was no case pending and consequently no nonsuit suffered.

This is a case of first impression, as no precedents except by analogy are found. We regret that we have received no aid by brief or argument on behalf of plaintiff, as our own research is necessarily limited. A few cases throw some light on the proposition. Thus it is held that, while ordinarily a suit is commenced so as to stop the running of the statute of limitations at the time of filing the petition and suing out summons, yet if plaintiff obstructs or delays the issuance of the summons or its service till a later date, then the suit cannot be said to be pending during the interval. White v. Reed, 60 Mo. App. 380, 388; McCormick v. Clopton, 150 Mo. App. 129, 130 S. W. 122. In reality a suit is not pending till the court acquires jurisdiction of the defendant, but, when that is accomplished in orderly and timely way, then by fiction of law it is said that the suit was commenced by the filing of the petition or in justice courts on delivery of the writ to the officer for service....