Kujich v. Lillie

• Decision Date: 02 July 1953
• Docket Number: Nos. 9064,9065,s. 9064
• Citation: 260 P.2d 383,127 Mont. 125
• Parties: KUJICH et al. v. LILLIE (two cases).
• Court: Montana Supreme Court

Page 383

260 P.2d 383

127 Mont. 125

KUJICH et al. v. LILLIE (two cases).

Nos. 9064, 9065.

Supreme Court of Montana.

Submitted Jan. 5, 1953.

Decided July 2, 1953.

Wellington D. Rankin and Rankin and Acher, Helena, Arthur P. Acher, Helena, argued orally, for appellants.

Graybill and Bradford, Great Falls, Truman G. Bradford, Great Falls, argued orally, for respondent.

ADAIR, Chief Justice.

Appeals from judgments of dismissal entered in two tort actions.

On November 26, 1941, Vernon C. May and John W. Kujich suffered such serious bodily injuries in an automobile accident on the Great Falls--Belt highway in Cascade County that both died therefrom. At the time of the accident May was driving the automobile and John W. Kujich was riding as a guest therein.

On November 27, 1944, Mary Kujich was duly appointed as special administratrix of the estate of John W. Kujich, deceased, by order of the district court of Lewis and Clark County, Montana.

On December 13, 1944, the defendant Robert G. Lillie was duly appointed as administrator of the estate of Vernon C. May, deceased, by order of the district court of Cascade County, Montana.

Commencement of Actions. On December 11, 1945, the instant tort actions against the defendant Robert G. Lillie, administrator of the estate of Vernon C. May, deceased, were filed in the district court of Lewis and Clark County, demanding damages arising out of the injuries to and death of John W. Kujich, alleged to have been due to the claimed gross negligence of the driver Vernon C. May. In one action, bearing district court No. 35205, Mary Kujich and John T. Kujich were plaintiffs, they being the mother and father and only heirs at law of John W. Kujich, deceased. In the other action, bearing district court No. 35207, Mary Kujich as special administratrix of the estate of John W. Kujich, deceased, was plaintiff.

Had Vernon C. May, the driver of the automobile, survived, the statute prescribes that the actions to recover damages from him for his alleged wrongful or negligent acts be commenced 'Within three years' after the injuries were inflicted, R.C.M.1947, § 93-2601 and § 93-2605, subds. 2 and 3, but here both May the driver and John W. Kujich the passenger riding with May died before the expiration of the three-year limit so prescribed.

R.C.M.1947, § 93-2704, in part provides: 'If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.' Emphasis supplied.

Letters of administration in the matter of the estate of Vernon C. May, the deceased driver, did not issue until December 13, 1944, and 'within one year after the issuing', § 93-2704, supra, of such letters, to-wit, on December 11, 1945, the instant actions were commenced against the defendant Robert G. Lillie as administrator of the estate of Vernon C. May, deceased.

Issuance of Summons. The statute expressly provides that 'at any time within one year' after the complaint in a civil action is filed 'the plaintiff may have summons issued'. R.C.M.1947, § 93-3002. Compare R.C.M.1947, § 93-4705, subd. 7. Here summons issued in each action on December 11, 1945, at the time of the filing of the complaints. Thus was summons issued within the time expressly allowed therefor by section 93-3002, supra.

R.C.M.1947, § 93-3004, provides that if a summons is returned without being served or if it has been lost, upon proper application therefor the clerk shall issue an alias summons 'but no such alias summons shall be issued after the expiration of three years from the filing of the complaint'. Emphasis supplied.

R.C.M.1947, § 93-4705, provides: 'An action may be dismissed or a judgment of nonsuit entered in the following cases:

'1. By the plaintiff himself, at any time before trial, upon payment of costs; provided, a counterclaim has not been made, or affirmative relief sought by the answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon;

'2. By either party upon the written consent of the other;

'3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal '4. By the court, when, upon the trial and before the submission of the case, the plaintiff abandons it;

'5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury;

'6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months;

'7. No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served and return made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years. The dismissal mentioned in the first two subdivisions is made by entry in the clerk's register.'

Service of Summons. On October 9, 1948, the defendant administrator was personally served with summons in each action and such service was made 'within three years after the commencement of said action', R.C.M.1947, § 93-4705, subd. 7, and within 'three years from the filing of the complaint' being the period prescribed by section 93-3004, supra, as the time limit for the issuance of an alias summons.

General Appearance Made by Defendant. On October 26, 1948, and 'within said three years', § 93-4705, subd. 7, after the commencement of the instant actions the defendant, by his attorneys, made a general appearance in each action by interposing a general demurrer to each complaint and at the same time filing in each action the appropriate and necessary papers seeking an order changing the place of trial to Cascade County.

On November 13, 1948, and within three years after the commencement of said actions the district court of Lewis and Clark County made and entered an order granting defendant's motions for a change of venue pursuant to which order the actions were transferred to the district court of Cascade County for trial.

For more than thirteen months after the filing of defendant's demurrers to the complaints the actions were pending on such demurrers with no move on the part of either the defendant or the plaintiffs to have the demurrers set for hearing or determined, but in December 1949, the plaintiffs served and filed written notices calling the demurrers for hearing for December 29, 1949, or as soon thereafter as counsel could be heard. Thereafter counsel for defendant and counsel for plaintiffs agreed that the hearing on defendant's demurrers be postponed and continued to a day certain.

After respective counsel had so agreed to a continuance of the hearing on the demurrers and prior to the arrival of the date so agreed upon for such hearing, the defendant served and filed notices of motions to dismiss the complaint in each action 'for want of prosecution, and on the grounds that plaintiffs have been guilty of gross laches and inexcusable delay and neglect in prosecuting the same and of serving summons upon said defendant.'

At the time defendant's motions to dismiss were filed, both cases were pending upon an issue of law raised by defendant's demurrers to the complaints and while such demurrers had been noticed for hearing, such hearing had been continued pursuant to an agreement entered into by counsel for all parties.

As is stated in Bignold v. Carr, 24 Wash. 413, 64 P. 519: 'At the time these motions were made the case was pending upon an issue of law raised by appellant's demurrer to the amended complaint. It was within the power of the appellant to have noticed the demurrer for hearing, and it was as much to his interest to expedite the case by noticing the demurrer for argument as it was the plaintiff's to have the cause prosecuted to trial. In fact, the case could not be tried until the demurrer was disposed of.'

After the noticing of the demurrer for hearing and after defendant's counsel had entered into the agreement for the continuance of such hearing, defendant may not then be heard to complain of delays to which he had acquiesced. As is said in Johnston v. Baker, 167 Cal. 260, 139 P. 86, 89: 'Moreover, we are of the opinion that by filing their answers respondents waived any laches predicated upon the ground of failure on the part of plaintiff to prosecute the action prior to the filing of such answers, and that after filing their answers the only showing of fact which defendants were entitled to make or have considered by the court in support of the motion was his neglect in prosecuting the case after the date of such filing.' Quoting from Romero v. Snyder, 167 Cal. 216, 138 P. 1002.

Defendant's motions to dismiss the actions were heard in January 1950, following which the trial court kept the motions under advisement until June 12, 1950, on which date it made and filed, in each action, an identical order sustaining each motion and dismissing the complaints. The orders read:

'Order. Defendant's motion to dismiss plaintiff's complaint having been submitted in open court on Wednesday, the 11th day of January, 1950, and counsel for the respective parties having prepared and filed affidavits and briefs in support of their contentions in the matter, and the court having duly considered the affidavits,...