Hardwick v. Smith, 6504.
Decision Date | 05 January 1961 |
Docket Number | No. 6504.,6504. |
Citation | 286 F.2d 81 |
Parties | Leatha Evans HARDWICK, Appellant, v. Dr. Newton C. SMITH; and Drs. Newton C. Smith, Bruce G. Smith, Thomas L. Hill, Carl O. Stensaas, and George C. Meek, a co-partnership, doing business as the Meek-Stensaas Clinic, Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Pat Warnick, Wichita, Kan. (Alan B. Phares, Wichita, Kan., was with him on the brief), for appellant.
W. A. Kahrs, Wichita, Kan. (Robert H. Nelson, H. W. Fanning and Richard C. Hite, Wichita, Kan., were with him on the brief), for appellees.
Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges.
On March 7, 1958, the plaintiff, a citizen of Texas, was injured in an automobile accident near Arkansas City, Kansas. She was treated in a hospital at Arkansas City by the defendants, d/b/a Meek-Stensaas Clinic, until she was dismissed as cured on March 18, 1958. This action was filed on March 4, 1960, and the Clerk of Court prepared the summons on March 5, 1960. The record indicates that the United States Marshal received the summons on March 22, 1960, and service was made on the same day. The trial court held that the Kansas statute of limitations barred the action, and sustained the defendants' motion for summary judgment.
In diversity actions such as this, federal courts are bound by the statute of limitations of the state where the cause of action arose. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A. L.R. 1231; Merchants Transfer & Warehouse Co. v. Ragan, 10 Cir., 170 F.2d 987, affirmed 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. It is conceded that under the provisions of Section 60-306, Kan. Gen.Stat., 1949, the action is barred unless commenced within two years after it accrued. Section 60-308, Kan.Gen. Stat., 1949, provides:
Clearly, the cause of action accrued not later than March 18, 1958, and would be barred unless the action was commenced within two years from that date. The question presented is whether the filing of the action and the preparation of a summons by the clerk, prior to the expiration of the two year period, is to be deemed the commencement of an action within the meaning of Section 60-308.
We see no material difference between this case and Merchants Transfer & Warehouse Co. v. Ragan, supra, 170 F. 2d 992 where it was said that "an analysis of the Kansas decisions leaves no doubt that an action such as this is barred unless commenced by the filing of an action and the issuance of summons and service thereof on the defendant, all within the two-year period, or the issuance and service of an alias summons upon the defendant within sixty days of the expiration of the two-year period where no service was obtained on the original summons." See also Ziegler v. Akin, 10 Cir., 261 F.2d 88.
The plaintiff contends that, regardless of what we thought the Kansas law was on the subject at the time Ragan was decided, it is now settled that actual service of summons on the defendant is not necessary to toll the statute of limitations. In Mingenback v. Mingenback, 176 Kan. 471, 271 P.2d 782, 789, in determining whether an action had been commenced within the statute of limitations, the court said:
"It has long been the rule of this court that when an action is filed and summons issued, or an affidavit for publication filed within the period of limitation and the plaintiff faithfully, properly and diligently endeavors to procure service, the action is deemed commenced as of the date of the filing of the action, provided service of summons or first publication is actually had within sixty days * * *."
This statement appears to be contrary to the holding of the Kansas cases relied upon in Ragan, from which this court concluded that the meaning of Section 60-308 is as though it read: "An action for the purpose of tolling the statute of limitations shall be deemed commenced as to each defendant as of the date on which the summons is served on him."1 In view of the apparent uncertainty and confusion of the...
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