Kile v. Cotner
| Decision Date | 24 May 1966 |
| Docket Number | No. 41074,41074 |
| Citation | 415 P.2d 961 |
| Parties | Raymond KILE, Plaintiff in Error, v. Earl Ray COTNER, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
When a petition does not show on its face that an action is barred by the Statute of Limitation, it is error to sustain a motion to quash on the grounds that the action is barred by the Statute of Limitation.
Appeal from the Court of Common Pleas of Tulsa County; Tom F. Shaw, Trial Judge.
Plaintiff in error appeals from an order of the trial court sustaining defendant in error's motion to quash and plea to the jurisdiction. Reversed with directions.
Ray H. Wilburn, Tulsa, for plaintiff in error.
Best, Sharp, Thomas & Glass, Joseph A. Sharp, Jack M. Thomas, Tulsa, for defendant in error.
This is an appeal on the original record from an order of the trial court sustaining defendant in error's Motion to Quash and Plea to the Jurisdiction. The parties will be referred to as they appeared in the trial court.
Plaintiff's petition alleged facts pertaining to a certain automobile accident that occurred on December 20, 1961. The petition was filed and summons was issued on December 20, 1963. A return on said summons was filed on December 30, 1963, disclosing defendant 'not found'. On January 16, 1964, an alias summons was issued and same was served on the defendant January 17, 1964. On February 4, 1964, defendant filed his motion to quash and plea to the jurisdiction and moved the court to quash, set aside, and hold for naught the summons and purported service thereof for the reason the court had neither venue nor jurisdiction over the defendant and that the summons was not issued, served and returned according to law. Defendant filed with said motion and plea an affidavit and certain portions of a deposition in support of his motion and plea to the effect that defendant did not live at the place designated in the original summons and that plaintiff's counsel knew this when the action was filed and summons was issued.
Apparently relying upon the provisions of Title 12 O.S.1961, Sec. 97, the trial court found that on December 20, 1963, when plaintiff caused the original summons to be issued, the same did not constitute an attempt to commence the action faithfully, properly and diligently to procure service because plaintiff's counsel knew defendant did not live at the place designated in the summons; and that the statute of limitations did in fact run on the cause of action on December 21, 1963, and the purported service of summons on defendant on January 18, 1964, was ineffective.
Based upon the above findings the trial court sustained defendant's motion to quash and plea to the jurisdiction.
The record is quite clear that in asserting his motion to quash and plea to the jurisdiction, defendant relied upon his contention that plaintiff had not faithfully, properly and diligently endeavored to procure service of summons on defendant on December 20, 1963, and plaintiff's action was barred by the Statute of Limitation. It is equally clear, that the trial court's order sustaining defendant's motion and plea was based on the Statute of Limitation after finding that plaintiff had not faithfully, properly and diligently endeavored to procure service of summons on defendant on December 20, 1963. In other words, defendant's motion and plea and the trial court's order sustaining the same were based on the proposition that since plaintiff had not faithfully, properly and diligently endeavored to procure service of summons on defendant on December 20, 1963, plaintiff's action was barred by the Statute of Limitation when service of the alias summons was had on January 17, 1964. Therefore, the issue presented is not whether defendant was properly served with summons on January 17, 1964, if plaintiff had not faithfully, properly and diligently endeavored to procure service on defendant on December 20, 1963; but whether the trial court committed error in sustaining the...
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...properly invoked. We cannot pass on its effect. National Zinc Co., Inc. v. Moody, Okl., 556 P.2d 268, 269 [1976]; Kile v. Cotner, Okl., 415 P.2d 961, 963 [1966]; and Greene v. Circle Ins. Co., Okl., 557 P.2d 422, 424 [1976]; Marks v. McCune, Okl., 370 P.2d 560, 562 [1962]. Nor can we here d......
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Ross v. Kelsey Hayes, Inc.
...1984 counterpart except that it provides that sections 2001 through 2027 are to be cited as the Oklahoma Pleading Code.8 Kile v. Cotner, 415 P.2d 961-62 (Okla.1966); Title 12 O.S.1981 § 97 provides:"An action shall be deemed commenced, within the meaning of this article, as to each defendan......
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Lindsey v. Dayton-Hudson Corp.
...97 is an integral part of the statute of limitations. See Walker v. Armco Steel Corp., 452 F.Supp. 243, 245 (W.D.Okl.1978); Kile v. Cotner, 415 P.2d 961 (Okl.1966); Kelly-Goodfellow Shoe Co. v. Todd, 5 Okl. 360, 49 P. 53 (1897). The language of the section limits its application to "this ar......
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Green v. Huff
...action are improperly joined."Sixth. That the petition does not state facts sufficient to constitute a cause of action."See Kile v. Cotner, Okl., 415 P.2d 961 (1966); James v. Unknown Trustees, 203 Okl. 312, 220 P.2d 831, 20 A.L.R.2d 1077 (1950); Mead v. Vincent, 199 Okl. 508, 187 P.2d 994 ......