Emanuel v. Richards
| Decision Date | 19 March 1968 |
| Docket Number | No. 32951,32951 |
| Parties | William H. EMANUEL, Plaintiff-Appellant, v. Alvin R. RICHARDS, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Val Terschluse, St. Louis, for appellant.
Clement A. Kieffer, St. Louis, for respondent.
CLEMENTS, Commissioner.
Both the magistrate and circuit courts dismissed plaintiff's petition for failure to commence his action within the five-year statute of limitations, and he appeals. The issue: Although filing suit and issuance of summons usually tolls a statute of limitation, did the plaintiff's nine-month delay in having an alias summons served on the defendant amount to such a lack of diligent prosecution as to revive the statute of limitations? We say no.
Plaintiff's cause of action accrued March 13, 1961, when the defendant rear-ended his car. Plaintiff filed his statement in the Magistrate Court of St. Louis on October 29, 1965, some four months before the running of the five-year statute, § 516.120, V.A.M.S. He alleged the defendant resided in Jefferson County. The first summons was issued immediately, for service on the defendant in Jefferson County, but was returned unserved. On the return date, November 24, 1965, plaintiff got the second summons, similarly directed; it, too, was returned unserved and the cause was continued generally. (During this continuance the plaintiff's cause of action reached its fifth anniversary, on March 13, 1966.) Then on June 14, 1966, the third summons issued, similarly directed, and it also was returned unserved. On the return date, July 11, 1966, the fourth summons issued, this one for service by the Sheriff of St. Louis County. It was served on the defendant July 26, 1966, five years and four months after plaintiff's action had accrued.
Thus, the record shows that within nine months after filing suit the plaintiff made four tries before he finally got service on the defendant. The defendant appeared specially and moved to dismiss the action on the ground it was barred by the five-year statute. The defendant conceded the petition had been filed and summons issued within the five-year period, but he contended the original summons was not 'kept alive by timely renewals' and 'the alleged service claimed in July, 1966, was out of time; the cause having lapsed * * *.' The Magistrate Court granted the motion. On plaintiff's appeal the Circuit Court also dismissed, citing St. Ferdinard Sewer District etc. v. Turner, Mo.App., 208 S.W.2d 85.
The applicable statutes do not justify the dismissal. Sections 516.100 and 516.120, V.A.M.S., declare that an action such as this must be commenced within five years after it accrues. Section 517.020, V.A.M.S., declares that an action before a magistrate is deemed commenced when summons is delivered to the sheriff to be served. The key word in these statutes is 'commenced', and the record here shows that the action was 'commenced' when the petition was filed and summons delivered to the sheriff on October 29, 1965, well within five years after the date plaintiff's cause of action had accrued, March 13, 1961. A long line of cases holds that the filing of a petition and the issuance of summons halt the running of statutes of limitation even though the summons is served thereafter. See Tice v. Milner, Mo., 308 S.W.2d 697(3, 5--6), and cases collected in 19A Mo.Digest, Limitation of Actions, k 118, 119.
The clear words of the statutes notwithstanding, they are limited by a judicially created qualification: Since statutes of limitation are favored by the law, they should not be perverted or extended by stratagems. If the commencement of an action is to stop the running of a statute of limitation, the commencement must be genuine--one made in good faith. This qualification works two ways, actively and passively. First, the principle of 'commencement' does not apply when a plaintiff files suit within time but actively obstructs service of process until a time after the limitation period has run its course. See Green v. Ferguson, Mo.App., 184 S.W.2d 790(2), and Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465(2--4). Second, the passive phase of the qualification is a corollary to the active phase: the filing of a petition and issuance of summons is but a conditional halting of the statute of limitation, and unless a plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. This passive qualification confronts us here. Judicial application of the qualification must be on a case-by-case basis, as seen by the following decisions declaring and applying it.
In Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809, the plaintiff filed suit and summons was issued but returned non est. Plaintiff waited ten years and then, after limitations had run, got service by an alias summons. This court analyzed earlier cases and concluded that by plaintiff's failure to make diligent use of available means to serve the defendant he had forfeited his right to claim that the statute of limitation had been tolled by the mere filing of suit and issuance of summons. We followed this in St. Ferdinand Sewer District v. Turner, supra (...
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