English v. T. H. Rogers Lumber Co.

• Decision Date: 11 June 1918
• Docket Number: Case Number: 7642
• Citation: 173 P. 1046,1918 OK 343,68 Okla. 238
• Parties: ENGLISH et al. v. T. H. ROGERS LUMBER CO. et al.
• Court: Oklahoma Supreme Court

1918 OK 343

173 P. 1046

68 Okla. 238

ENGLISH et al. v. T. H. ROGERS LUMBER CO. et al.

Case Number: 7642

Supreme Court of Oklahoma

Decided: June 11, 1918

Syllabus

¶0 1. Limitation of Actions--Commencement of New Action.

Section 4662, Rev. Laws 1910, providing that, if any action be commenced within due time and tone plaintiff therein shall fail otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff may commence a new action within one year after such failure, applies only when the party would otherwise be barred of his right of action from the lapse of time prescribed by the statute of limitations relating to the cause of action.

2. Same.

The statute of limitations, fixing the time within which an action must be brought, is not changed by section 4662, unless the failure otherwise than upon the merits occur after the time limited by statute shall have expired. When the failure occurs before the expiration of the statutory period, the statute has no application.

Error from District Court, Muskogee County; R. P. De Graffenried, Judge.

Action by the T. H. Rogers Lumber Company against Bessie E. English and Tupper & Bird, a copartnership, composed of H. E. Tupper and E. V. Bird, defendants. Judgment for plaintiff, and defendant Bessie E. English and A. Z. English and W. C. Cook. sureties, bring error. Reversed and remanded, with direction to dismiss the action.

N. A. Gibson, J. L. Hull, and T. L. Gibson, for plaintiffs in error.

W. W. Nofsinger and Y. P. Broome, for defendant in error T. H. Rogers Lumber Co.

SHARP, C. J.

¶1 On July 7, 1911, the T. H. Rogers Lumber Company commenced an action against Bessie E. English to recover judgment in the sum of $ 1,636.65 on account of certain lumber and building materials sold by the lumber company to Tupper & Bird, contractors, and to foreclose a lien on lot 1 in block 56 in the city of Muskogee, owned by defendant. The defendant appeared and demurred to the petition on the ground: (1) That the petition did not state facts sufficient to constitute a cause of action; (2) there were not sufficient parties defendant. On November 6th following, the plaintiff appeared and dismissed its action without prejudice. Afterwards and on the 8th day of March, 1912, a second action was brought by the lumber company against Bessie E. English, in which Tupper & Bird and the Muskogee Paint & Glass Company were joined as defendants. The summons was returned March 14th, showing service on defendants Tupper & Bird and Muskogee Paint & Glass Company on March 12th. No service was had on defendant Bessie E. English, the return showing that she was not found in the county, with an added notation, "Out of city." May 2d following an alias summons was issued, directed to the defendant Bessie E. English, which was served upon her May 13th following.

¶2 Section 3873, Rev. Laws 1910, requires that an action to enforce a lien provided for in chapter 44 must be brought within one year from the time of the filing of the lien with the clerk of the district court. The lien was filed March 31, 1911; the petition in the action to enforce the lien was filed March 8, 1912. Under section 4659, Rev. Laws 1910, an action is commenced within the meaning of article 2, c. 60, Code of Civil Procedure, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him. An attempt to commence an action is deemed to be equivalent to the commencement thereof, when the party faithfully, properly, and diligently endeavors to procure service of summons; but such attempt must be followed by service of the summons within 60 days. The defendant Bessie E. English being neither a joint contractor nor united in interest with the other defendants within the meaning of the act, it was necessary that the summons be served on her within 60 days from the filing of the action in order to arrest the statute of limitations; that is, until the service of a summons on her as required by statute, the action as to her was not deemed to have been commenced. This rule appears to be established by the following opinions: Wedd v. Gates et al., 15 Okla. 602, 82 P. 808; School District v. Fisher, 23 Okla. 9, 99 P. 646; Koch Tea Co. v. Davis, 48 Okla. 14, 145 P. 337; Thraves v. Tucker et al., 63 Okla. 46, 161 P. 1069; One Ford Automobile v. State, 63 Okla. 67, 162 P. 779.

¶3 In answer to the plea of the statute of limitations counsel for defendant in error rely principally upon section 4662, Rev. Laws 1910, which it says gave it one year after the dismissal, on November 6, 1911, of the original action in which to commence a new action. Whether the statute relied on contemplates voluntary dismissals, not being urged by counsel, need not be determined. That it does is held in McWhirt v. McKee, 6 Kan. 412, and Hall v. Hurd, 40 Kan. 374, 19 P. 802. Numerous authorities are collected in Pennsylvania Co. v. Good, 56 Ind. App. 562, 103 N.E. 672, to the effect that a properly instituted claim, voluntarily abandoned, cannot be made available in a subsequent action to save it from the operation of the statute of limitations.

¶4 It is claimed by plaintiffs in error that, as the dismissal was within the time fixed for the bringing of the action to enforce the lien, the statute relied on can have no application. We have already noted that the first action against Bessie E. English was fried July 7, 1911, and, that the dismissal thereof was on November 6th following, and within less than eight months of the one year provided for the bringing of such action. The statute reads:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

¶5 Assuming for the purposes of the case that the plaintiff failed in its original action within the meaning of the statute, at the time of its failure ample opportunity was afforded for the institution of another action. Hence it cannot be said that, even though the action failed otherwise than upon the merits, the time limited for the bringing of the action had expired. In fact it had not, as plaintiff had over four months therefrom in which to bring another action.

¶6 The statute giving to a plaintiff the right to commence a new action within one year after the reversal or failure of his original action was not intended to afford in all cases an additional time in which to bring suit. By its terms the right is conditioned upon the fact that "the time limited for the same...