Lang v. Hill

• Decision Date: 08 March 1961
• Citation: 360 P.2d 316,226 Or. 371
• Parties: Rose Marie LANG, Appellant, v. Harold Allen HILL, also known as Charlie Hill, Respondent.
• Court: Oregon Supreme Court

Page 316

360 P.2d 316

226 Or. 371

Rose Marie LANG, Appellant, v. Harold Allen HILL, also known as Charlie Hill, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Feb. 9, 1961.

Decided March 8, 1961.

Glenn Ramirez, Klamath Falls, for appellant. On the brief were Ramirez & Coe, Klamath Falls.

Freeman C. Murray, Klamath Falls, for respondent.

Before ROSSMAN, P. J., and PERRY, GOODWIN and LUSK, JJ.

LUSK, Justice.

This is an action for assault and battery. From an adverse judgment based on a finding by the court below that the action was barred by the statute of limitations, the plaintiff appeals.

The date of the assault and battery as alleged in the complaint was November 20, 1955. The complaint was filed and the summons delivered to the sheriff on October 1, 1957. On December 23, 1957, service of complaint and summons was made on the defendant in Klamath county, Oregon. Thereafter, the defendant filed his amended answer in which he set up the above facts as a bar to the action. Plaintiff filed a reply alleging that between October 1, 1957 and December 23, 1957, defendant concealed himself within Klamath county for the purpose of avoiding service and for that reason the statute of limitations was tolled.

As a preliminary matter, the court took testimony on the question of whether the statute of limitations had run. The hearing was without a jury. The judgment recites that 'by agreement and consent of the parties, the Court proceeded out of the ordinary course of trial procedure to take testimony' on this issue. The judgment further recites: 'The Court proceeded to determine as a matter of law outside the hearing of the jury, under the objection of the Plaintiff and after having heard the testimony determined' that the defendant in no way attempted to conceal himself or to avoid service of process and that the statute had run as a matter of law Although the language of the recitals which we have quoted is somewhat ambiguous, we think that a fair construction is that the parties agreed to the hearing of this question as a preliminary matter, but that the plaintiff objected to hearing it without a jury.

Two questions are presented for decision. First, whether, irrespective of the question of concealment, the action was filed in time; and second, whether plaintiff was entitled to a jury trial of the issue of concealment.

1. An action for assault and battery must be commenced within two years after accrual of the cause of action. ORS 12.010 and 12.110. Other applicable statutes are the following:

ORS 15.020: 'Action shall be commenced by filing a complaint with the clerk of the court * * *'

ORS 12.020: 'For the purpose of determining whether an action has been commenced within the time limited, an action shall be deemed commenced as to each defendant, when the complaint is filed, and the summons served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him.'

ORS 12.030: 'An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this chapter, when the complaint is filed, and the summons delivered, with the intent that it be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt shall be followed by the first publication of the summons, or the service thereof, within sixty days.'

In Dutro v. Ladd, 50 Or. 120, 91 P. 459, 460, this court held that the requirement of the last sentence of ORS 12.030, 'But such an attempt shall be followed by the first publication of the summons or the service thereof within sixty days', means sixty days from the filing of the complaint and that where more than sixty days elapsed after the filing of the complaint before summons was served on the defendant or publication of summons commenced and the statutory time had meanwhile run, the action was barred. This decision has stood unchallenged for nearly sixty years and the construction there given the statutes is, we think, undoubtedly correct.

Applying the rule to the facts of this case, it is clear that the action is barred unless the statute was tolled by the defendant concealing himself to avoid service of summons. The complaint was filed and summons and complaint delivered to the sheriff on October 1, 1957, three weeks before the two year period for the commencement of the action would expire. The sixty day period for making service or commencing publication of summons (assuming a case where publication of summons was appropriate) expired November 30, 1957. No publication of summons was attempted and personal service on the defendant was not made until December 23, 1957, 23 days after the expiration of the sixty day period and 32 days after the expiration of the two year period.

Since there was failure to comply with the sixty day requirement of the final sentence of ORS 12.030, the attempt to commence the action was not the equivalent of its commencement. For the purpose of determining whether the action was commenced within the time limited the case is no different than it would have been had no complaint ever been filed.

The plaintiff argues that Dutro v. Ladd is distinguishable because that case was an action on contract and jurisdiction could have been obtained by the attachment of property within the state and the publication of summons; whereas, in an action of tort, the defendant must be personally served. The contention seems to assume that the statute has no application to a case in which...