Kope v. Columbia River Interstate Bridge Com'n

• Decision Date: 01 May 1928
• Docket Number: 20809.
• Citation: 147 Wash. 602,266 P. 1053
• Parties: KOPE v. COLUMBIA RIVER INTERSTATE BRIDGE COMMISSION et al.
• Court: Washington Supreme Court

266 P. 1053

147 Wash. 602

KOPE v. COLUMBIA RIVER INTERSTATE BRIDGE COMMISSION et al.

No. 20809.

Supreme Court of Washington

May 1, 1928

Department 2.

Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.

Action by Stephen Kope against the Columbia River Interstate Bridge Commission and Clark County. From an adverse judgment plaintiff appeals. Affirmed.

McMaster Hall & Schaefer, and Gordon Powers, all of Vancouver, for appellant.

Dale McMullen and Claude C. Snider, both of Vancouver, and Stanley Myers and George Mowry, both of Portland, Or., for respondents.

MAIN J.

The purpose of this action was to recover damages for personal injuries. Some time after the summons and a copy of the original complaint were served, an amended complaint was served. To the amended complaint a demurrer was interposed and sustained. The plaintiff refused to plead further, and elected to stand upon the amended complaint. Judgment was entered dismissing the action, from which plaintiff appeals.

The facts necessary to be stated in order to present the question to be determined are very few. The action was one against Clark county. The appellant was injured June 11, 1926. He filed a claim for damages July 20, 1926. Thereafter, and on September 28, 1926, the action was begun by the service of a summons and a copy of the complaint. The original complaint and the amended complaint were both filed in the clerk's office on May 24, 1927. It thus appears that more than 3 months elapsed after the service of the summons and a copy of the original complaint before either that complaint or the amended complaint was filed. The question is whether the complaint was filed in time. Section 167, Rem. Comp. Stat. in part provides that 'an action shall be deemed commenced when the complaint is filed.' Section 220 is as follows:

'Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county clerk as clerk of the court: Provided, that unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.'

Construing these two sections, this court has uniformly held that an action is not deemed commenced so as to toll the statute of limitations until the complaint is filed, but that the action for other purposes will be deemed commenced by the service of summons and a copy of the complaint. Cresswell v. Spokane Co., 30 Wash. 620, 71 P. 195; Blalock v. Condon, 51 Wash. 604, 99 P. 733; Lara v. Sandell, 52 Wash. 53, 100 P. 166; Petree v Washington Water Power Co., 64 Wash. 636, 117 P. 475; Murker v. Northern P. R. Co., 95 Wash. 280, 163 P. 756; McDonald v. Prosser Falls L. & P. Co., 110 Wash. 175, 188 P. 462.

The inquiry then is whether the complaint in the present case was filed within the time required by the law. Section 164, Rem. Comp. Stat., requires that an action be brought within 3 months after a claim filed with the board of county commissioners shall have been rejected by that board. Section 4076, in part, provides:

'* * * Nothing herein contained shall be so construed as to prevent a party having a claim against any county in this state from enforcing the collection thereof by civil action in any court of competent jurisdiction, after the same may have been presented and disallowed in whole or in part by the board of county commissioners of the proper county: Provided, that such action be brought within three months after such claim has been acted upon by such board.'

From these statutes it appears that the action must be begun within three months after the claim has been rejected or acted upon by the board of county commissioners. Under the rule first above stated, it was necessary that the complaint in the action be filed within 3 months after the rejection of the claim in order to toll the 3-month statute of limitations. It does not appear that the commissioners had ever acted upon or rejected the claim. The appellant's position is that the 3-month statute of limitation cannot be set in motion until the board has actually acted upon or rejected the claim. That part of section 4076 above quoted authorizes a civil action after a claim has been presented and disallowed, but it fixes no time in which the board shall act. In Bullock v. Yakima Valley Transp. Co., 108 Wash. 413, 184 P. 641, 187 P. 410, it was held that, after a claim had been presented to the board of county commissioners, and a reasonable time had elapsed for the board...