Cresswell v. Spokane County

• Decision Date: 05 January 1903
• Citation: 71 P. 195,30 Wash. 620
• Court: Washington Supreme Court
• Parties: CRESSWELL et ux. v. SPOKANE COUNTY.

71 P. 195

30 Wash. 620

CRESSWELL et ux. v. SPOKANE COUNTY.

Supreme Court of Washington

January 5, 1903

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by John I. Cresswell and wife against Spokane county. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Shine &amp Winfree, for appellants.

Horace Kimball and Miles Poindexter, for respondent.

DUNBAR J.

This case presents the question of whether the service of summons together with a copy of the complaint, is a sufficient commencement of an action to stop the running of the statute of limitations. It was raised by respondent's demurrer to the appellants' amended complaint. The court held that although the summons was served within the time limited by statute for commencing this class of actions, yet, as the complaint was not filed in the clerk's office within such time, the action was barred. Appellants refusing to plead further, respondent took judgment of dismissal, from which judgment this appeal is taken.

It is admitted that the action was not barred at the time the summons and a copy of the complaint were served, and it is conceded that, if that service is such a commencement of an action as will stop the running of the statute of limitations, the demurrer should not have been sustained. The appellants review the statute in relation to the commencement of actions from the passage of the first law in 1854 up to the last enactment, and insist that a harmonious construction of all the acts warrants the conclusion that an action is commenced for all purposes by the service of the summons. We are unable to adopt this view, but are inclined to think that a history of the enactments rather tends to show the independent character of section 4807, 2 Ballinger's Ann Codes & St., which provides that, so far as the statute of limitations is concerned, an action shall be deemed commenced when the complaint is filed. Under the first enactment it is provided that actions shall be commenced by filing a complaint and issuing a summons thereon, and there was no qualification in any respect. In 1863 the law was changed, and it was provided that civil actions should be commenced by service of copies of the complaint. Nor was there any qualification or limitation to this act, but, like its predecessor, it provided for the commencement of actions for all purposes. In 1869 the same provision in relation to the...