Mace v. Centel Business Systems
Decision Date | 21 July 1989 |
Citation | 549 So.2d 70 |
Parties | Virginia A. MACE v. CENTEL BUSINESS SYSTEMS and South Central Bell Telephone Company. 88-633. |
Court | Alabama Supreme Court |
Virginia A. Mace, pro se.
N.T. Braswell III of Rushton, Stakely, Johnston, and Garrett, Montgomery, for appellee Centel Business Systems.
William A. Shashy and H. Byron Carter III of Steiner, Crum & Baker, Montgomery, for appellee South Central Bell Telephone Co.
Virginia A. Mace filed a negligence action against Centel Business Systems and South Central Bell Telephone Company on the last day of the statutory period of limitations, i.e., two years after her alleged injury. She did not pay the filing fee, however, and although she attached an affidavit of substantial hardship, that affidavit had not been approved by a circuit judge. See Ala.Code 1975, § 12-19-70. Furthermore, Mace did not include the address of either defendant, a summons to be served on either defendant, or any instructions for service of process or any explanation for the lack of such instructions. Both defendants filed motions for summary judgment on the ground that the claim was barred by the statute of limitations, and the trial court entered summary judgment for the defendants.
Alabama Code 1975, § 12-19-70, reads:
This Court has held that an action is not commenced for purposes of the statute of limitations if it is not filed "with the bona fide intention of having it immediately served." Ward v. Saben Appliance Co., 391 So.2d 1030, 1035 (Ala.1980). In Ward, the plaintiff filed the complaint on the last day of the statutory period of limitations, but instructed the clerk to withhold service of process. This Court affirmed a summary judgment entered for the defendants. Instructions to withhold service also led to affirmance, on the authority of Ward, of summary judgments for defendants in Freer v. Potter, 413 So.2d 1079 (Ala.1982), and Finkelstein v. Lovell, 449 So.2d 1240 (Ala.1984).
Similarly, this Court held in De-Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1222 (Ala.1985), that "the payment of the fees required by § 12-19-70 or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes."
More recently, this Court held...
To continue reading
Request your trial-
Arrington v. Courtyard Citiflats, LLC (Ex parte Courtyard Citiflats, LLC)
...on prior authority from this Court, notably De–Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), and Mace v. Centel Business Systems, 549 So.2d 70 (Ala.1989), Citiflats alleged that the mere filing of Arrington's complaint without payment of the filing fee or approval of the hardsh......
-
Boostrom v. Bach
...our holding today is consistent with that of other jurisdictions which have borrowed from Fed.R.Civ.P. 3. See, e.g., Mace v. Centel Business Sys., 549 So.2d 70 (Ala.1989). Conclusion The filing of Boostrom's small claims fee did not occur until after limitations period had run. As such, her......
-
Scott v. CVS Pharmacy, L.L.C. (Ex parte CVS Pharmacy, L.L.C.), 1150355.
...on prior authority from this Court, notably De–Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), and Mace v. Centel Business Systems, 549 So.2d 70 (Ala.1989), Citiflats alleged that the mere filing of Arrington's complaint without payment of the filing fee or approval of the hardsh......
-
Baker v. Bennett
...of the statute of limitations if it is not filed with the bona fide intention of having it immediately served." Mace v. Centel Business Systems, 549 So.2d 70 (Ala.1989). Generally, the claim may be barred where the plaintiff has manifested a lack of intent to serve the defendant promptly af......