Karnes v. Keck

• Decision Date: 22 August 1935
• Docket Number: No. 524-D.,524-D.
• Citation: 11 F. Supp. 577
• Parties: KARNES v. KECK et al.
• Court: U.S. District Court — Eastern District of Illinois

11 F. Supp. 577

KARNES v. KECK et al.

No. 524-D.

District Court, E. D. Illinois.

August 22, 1935.

Scerial Thompson, of Harrisburg, Ill., G. L. Grant, of Springfield, Ill., and Thurlow G. Lewis, of Benton, Ill., for plaintiff.

George W. Dowell, of Du Quoin, Ill., Nobel Y. Dowell, of East Peoria, Ill., C. C. Dreman, of Belleville, Ill., D. W. Johnston, of Taylorville, Ill., and Lloyd H. Melton, of Harrisburg, Ill., for defendants.

LINDLEY, District Judge.

The defendants file herein their motion to dismiss the action, alleging that the same is barred by the statute of limitations of Illinois. Plaintiff seeks to recover damages for personal injuries sustained by him, according to the allegations of his complaint, on May 21, 1933. Affidavits in support of the motion disclose that the alleged assault, from which the injuries are claimed to have resulted, occurred on May 21, 1933. Counsel for plaintiff stipulate that the assault occurred on that date.

The records show that the complaint was filed in February, 1935, but that no summons was issued until May 23, 1935. Under the act of Congress (28 USCA § 725), the laws of the several states, including statutes of limitation, are binding upon the courts of the United States, unless in conflict with the Constitution and laws of the federal government. Bauserman v. Blunt, 147 U. S. 647, 652, 13 S. Ct. 466, 37 L. Ed. 316 and cases there cited. There being no federal statute of limitations in conflict with that of Illinois, the latter governs.

By Smith-Hurd Ann. St. Ill. c. 83, § 15, it is provided that actions for damages for personal injuries shall be commenced within two years next after the cause of action accrued. Section 5 of the Illinois statute covering practice (Smith-Hurd Ann. St. c. 110, § 129) provides that each civil action "shall be commenced by the issuance of a summons." It would seem clear, therefore, that the present action was not commenced, within the meaning of the statute, within two years.

This conclusion is sustained by the decisions of the Supreme Court of Illinois which has held repeatedly that a suit is not legally begun, so as to stop the running of the statute of limitation, until a summons has been issued to bring defendant into court. This, says the court, is one of the most familiar and best-settled rules of the law. See Chicago & N. W. Ry. Co. v. Jenkins, 103 Ill. 588; Collins v. Manville, 170 Ill. 614, 615, 48 N. E. 914. The rule is to the same effect in other states. See Hekla Ins. Co. v. Schroeder, 9 Ill. App. (9 Bradw.) 472; Angell on Limitations, § 312; Hancock v. Ritchie, 11 Ind. 48; Evans v. Galloway, 20 Ind. 479; Burdick v. Green, 18 Johns. (N. Y.) 14; Ross v. Luther, 4 Cow. (N. Y.) 158, 15 Am. Dec. 341; Lamkin v. Nye, 43 Miss. 241; Davis v. Duffie, 18 Abb. Prac. (N. Y.) 360; Webb v. Pell, 1 Paige (N. Y.) 564; Hayden v. Bucklin, 9 Paige (N. Y.) 512; Updike v. Ten Broeck, 32 N. J. Law, 105; Bronson v. Earl, 17 Johns. (N. Y.) 63; Mason v. Cheney, 47 N. H. 24; People v. Clark, 33 Mich. 112.

Plaintiff insists, however, that the summons was issued on May 21, 1935, and in support thereof submits the affidavit of the chief deputy clerk in which it is stated positively that the issuance was on May 21st. The minutes of the clerk show issuance on May 23d. The marshal's minutes show receipt of the writs on May 23d. The summons is dated May 23d.

The statutes of Illinois provide that "every civil action, unless otherwise expressly provided by statute shall be commenced by the issuance of a summons. The clerk shall issue summons upon request of the plaintiff." Smith-Hurd Ann. St. Ill. c. 110, § 129. The Illinois courts have held that "the record proper in a suit at law consists of the process by which the defendant is brought into court, including the sheriff's return, the declaration, pleas, demurrer, if there is any; also any judgment upon demurrer, or other judgment, interlocutory or final" (Van Cott v. Sprague, 5 Ill. App. 99, 101), and that "our practice with regard to the making of records of judgments is different from that which obtained at common law. The papers of a case, when filed, under our statute become a part of the record as fully as if copied into the record book of the court." Velde et al. v. Schrock et al. (1929) 253 Ill. App. 274, affirming Harding v. Larkin et al., 41 Ill. 413. In Baldwin v. McClelland, 152 Ill. 42, 38 N. E. 143, 144, the court held that "to constitute a complete record, it must be shown that the court had jurisdiction of the subject-matter, jurisdiction of the person of the defendant, and the determination of the cause by the court. Hence the pleadings, the process, and return of service, or its equivalent, by which the court acquired jurisdiction of the person, and orders of the court, are necessarily included in a proper record. A record thus made imports verity." Baldwin v. McClelland, 152 Ill. 42-52, 38 N. E. 143. It follows that the summons and all its contents are part of the official records of the court, and import verity. Of all parts of such records the court takes judicial notice. Taylor v. Adams, 115 Ill. 570, 4 N. E. 837; Milwaukee Ins. Co. v. Schallman, 188 Ill. 213, 59 N. E. 12.

The question immediately arises then as to whether parol evidence may be received or considered, to impeach or vary the record. Where a party attempted to show that the record of a judgment of a justice of the peace had been changed, the court, in Garfield v. Douglass, 22 Ill. 100, 74 Am. Dec. 137, said: "The entry upon the justice's docket was a judgment in bar; and the policy of the law forbids that parol proof should be admitted to show, that the justice originally entered a judgment of non-suit and afterwards changed it, to a judgment in bar. The record or entry of the justice, is higher and more trustworthy than any parol evidence can be. If one record is opened to be questioned by parol evidence then another must be, and all security and confidence in the stability of records are gone." The record of a court can never be contradicted, varied, or explained by evidence dehors the record itself. A record imports absolute verity, and it must be tried and construed by itself. Wabash, St. L. & P. Ry. Co. v. Peterson, 115 Ill. 597, 598, 6 N. E. 412. See, also, People v. Board of Sup'rs of Madison County, 125 Ill. 334, 335, 17 N. E. 802; People v. Carr, 231 Ill. 502, 83 N. E. 269; O'Connell v. Chicago Term. R. Co., 184 Ill. 308, 56 N. E. 355; Chaplin v. Highway Commissioners, 129 Ill. 651, 22 N. E. 484; Troxell v. Dick, 216 Ill. 98, 74 N. E. 694; People v. North Fork D. Dist., 331 Ill. 68, 79, 162 N. E. 184; People v. Carr, 265 Ill. 220, 106 N. E. 801; People v. Hartquist, 311 Ill. 127, 142 N. E. 475; People v. Prather, 322 Ill. 280, 283, 153 N. E. 382; Harris v. Lester et al., 80 Ill. 307, 308. Where there was an attempt...