Mayne v. Jacob Michel Real Estate Co.

• Decision Date: 06 June 1944
• Parties: Walter R. Mayne, Liquidator of St. Ferdinand Sewer District of St. Louis County, Missouri, a Corporation, Respondent, v. Jacob Michel Real Estate Company, a Missouri Corporation, Appellant
• Court: Missouri Court of Appeals

180 S.W.2d 809

237 Mo.App. 952

Walter R. Mayne, Liquidator of St. Ferdinand Sewer District of St. Louis County, Missouri, a Corporation, Respondent, v. Jacob Michel Real Estate Company, a Missouri Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

June 6, 1944

Appeal from the Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Reversed.

Edward A. Ferrenbach and Joseph T. Hersby, for Appellant.

(1) The defense of the Statutes of Limitations may be set up in an action by tax authorities on tax obligations. (a) City of Springfield ex rel. People's Bank v. Deming, 252 S.W. 91; St. Louis County ex rel. Scott v. Marvin Planing Mill, 58 S.W.2d 769; City of St. Louis to the Use of Deppelheuer v. Newman, 45 Mo. 138. (b) Sec. 862, R. S Mo. 1929; Sec. 9961, R. S. Mo. 1929 (Sec. 11165, R. S. Mo 1939); State ex rel. Hudson v. Carr, 178 Mo. 229, 77 S.W. 543, 546; City of Moberly ex rel. v. Hassett, 106 S.W. 115. (2) In Missouri a cause of action is deemed "commenced" upon the filing of the petition and suing out of process. However, in order to toll the Statute of Limitations, these acts must be accompanied by a bona fide intent that service be had, and, when service is not effected, reasonable diligence must be exercised to procure same; otherwise the continuity of the action shall be deemed broken and the intent to prosecute abandoned. (a) A continuing intent to secure service is requisite to prevent the Statute of Limitations from being invoked. Sec. 724, R. S. Mo. 1929 (Sec. 876, R. S. Mo. 1939); Sec. 9961, R. S. Mt. 1929 (Sec. 11165, R. S. Mo. 1939); Bennett v. Metropolis Publ. Co., 148 S.W.2d 109; State ex rel. Bennett v. Hughes, 155 S.W.2d 184; Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265; Austin Banking Commissioner v. Proctor (Tex.), 291 S.W. 702; Wolfenden v. Barry, 65 Ia. 653, 22 N.W. 915. (b) And when the first summons fails, a subsequent summons or alias must be issued within a reasonable time, otherwise there is no continuity of the action. Where the statutory period elapses between the issuing of successive writs, the action is barred. O'Neill's Estate, 29 Pa. S.Ct. 415; Mound City v. Castleman, 187 F. 921; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912; Clark v. Keller, 3 Bush Repts. (Ky.) 223; United States v. Miller, 164 F. 444; Etheridge v. Woodley, 83 N.C. 11; Danaher v. Roos, 278 Mich. 485, 270 N.W. 759; Rees v. Clark, 213 Pa. 617, 620; Peck v. Insurance Co., 102 Mich. 52, 60 N.W. 453; Morgan v. Hardy, 57 S.W.2d 204 (Texas); Meyer v. Pecos Mercantile Co. 47 S.W.2d 435 (Texas).

T. Douglas Moore for respondent.

Fordyce, White, Mayne, Williams & Harman of counsel.

(1) The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein shall be taken and deemed the commencement of a suit R. S. Mo. 1939, Sec. 876; 34 Amer. Juris., Sec. 247, p. 202; State v. Producers Gravel Co., 111 S.W.2d 521, l. c. 523; Ferber v. Brueckl, 17 S.W.2d 524; McGrew v. Carr, 21 S.W.2d 640, l. c. 641. (2) In Missouri a suit is deemed commenced when the petition is filed, even though process is not thereafter issued until the period of limitation has run. City of St. Louis v. Miller, 145 S.W.2d 504; McGrath v. St. Louis, K. C. and Colorado R. Co., 30 S.W. 329; South Missouri Lumber Company v. Wright, 21 S.W. 811; State ex rel. Brown v. Wilson, 115 S.W. 549. (3) Where the plaintiff or his attorney filed his petition in due time and does not request the withholding of summons, the suit is "commenced." Hill-Behan Lumber Company v. Sellers, 149 S.W.2d 465, l. c. 467.

OPINION

Sutton, C.

This action was commenced on November 10, 1932, in the Circuit Court of St. Louis County, for the recovery of sewer taxes levied against certain tracts of land, described in plaintiff's petition, belonging to defendant, situate in said county. The petition alleges that the taxes became delinquent in 1931.

The record recites that, on November 21, 1932, a writ of summons was issued for defendant, Jacob Michel Real Estate Company, and delivered to the sheriff of St. Louis County, and said writ, on January 9, 1933, was returned unexecuted; that, on July 7, 1943, plaintiff amended his petition by changing the name of defendant to Jacob Michel Real Estate Company, a Missouri corporation; that, on the same day, an alias summons was ordered to issue and was issued for the defendant to the sheriff of the City of St. Louis; that, on July 14, 1943, said alias summons was returned executed; that, on September 22, 1943, defendant filed its special demurrer to plaintiff's petition, alleging as ground therefor that it appeared from the petition and the record of the proceedings in the cause that plaintiff's cause of action, if any he had, was barred by the five-year statute of limitations; that, on October 25, 1943, defendant's special demurrer was by the court overruled; and that, on October 28, 1943, defendant filed its answer, pleading the five-year statute of limitations as a bar to plaintiff's actions.

The trial, which was had on November 29, 1943, before the court, without a jury, resulted in a judgment in favor of plaintiff for $ 433.89 against the tracts of land described in the petition, said sum being charged as a first lien on said tracts of land, to be enforced by special execution. From this judgment defendant appeals.

Plaintiff's evidence showed the amounts of sewer taxes levied against the several tracts of land and the ownership of the tracts.

Defendant's evidence showed that the suit was filed on November 7, 1932; that a writ of summons was issued and delivered to the county sheriff on November 21, 1932, and was returned unexecuted on January 9, 1933; that an alias summons was ordered issued and was issued against defendant on July 7, 1943; that this was the only writ of summons issued after the original writ had been returned unexecuted on January 9, 1933; that the alias writ was returned executed by the city sheriff on July 14, 1943; that a special demurrer was filed on September 22, 1943, and was overruled on October 25, 1943; and that an answer was filed by defendant on October 28, 1943.

The evidence further showed, or tended to show, that the clerk's office had never been instructed to withhold the issuance of a writ of summons.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.

It appears from the record before us that the statute of limitations commenced to run in 1931, yet, though the petition was filed and a writ of summons was issued in November, 1932, and the writ was returned unexecuted in January, 1933, defendant was not served with process and no further process was issued until 1943, twelve years after the statute commenced to run and ten years and eight months after the filing of the petition and the issuance of the original writ, and ten years and six months after the return of the writ.

Plaintiff relies on section 876, R. S. 1939, which provides that the filing of a petition in a court of record, and the suing out of process therein, shall be taken and deemed the commencement of a suit.

In this case the petition was filed and a writ of summons was issued upon the filing of the petition. There is no question that this was the commencement of the suit within the meaning of the statute of limitations, but the fact that the suit was commenced prior to the running of the statute is not necessarily decisive. The question with which we are here concerned is as to whether or not there was such delay in the issuance of other process following the return of the original writ as to interrupt the continuity of the suit so that the running of the statute became a bar to the suit.

It will be observed that, while it is the duty of the clerk to issue process upon the filing of the petition, without any request by plaintiff therefor, this is not so with respect to subsequent process.

Section 890, R. S. 1939, relating to service on corporations, provides as follows:

"In case the sheriff or other officer shall return any summons not served, and it shall be made to appear to the court that process cannot be served, the court, or the clerk thereof in vacation, shall make an order directing the defendant to be notified of the commencement of the suit by publication, in the same manner as is now provided by law for the notification of non-residents in civil cases."

Section 891 provides for service by publication in certain cases, such as this, on non-resident defendants, including corporations, and on defendants who have absconded or absented themselves from their usual place of abode in this state, or have concealed themselves so that the ordinary process of law cannot be served upon them.

Section 893 provides as follows:

"When, in any of the cases contained in section 891, summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found, the court, being first satisfied that process cannot be served, shall make an order as is required in said section."

Section 908 provides that when any writ or process issued out of any court of this state shall not be executed, the clerk of such court, on application of the party suing out such writ or process, shall issue other like process.

In Pitkin v. Flagg, 198 Mo. 646, 97 S.W. 162, it is held that it is not the duty of the court of its own motion to cause an order of publication to be made for a defendant on a non est return of a summons, but that it is the duty of the plaintiff to ask for such order, and if he does not do so the cause should be dismissed for failure to prosecute.

It is thus made clear that, when a writ of summons...