McGrath, by Next Friend v. St. Louis, Kansas City & Colorado Railroad Company
| Decision Date | 26 March 1895 |
| Citation | 30 S.W. 329,128 Mo. 1 |
| Parties | McGrath et al., by Next Friend, Appellant, v. The St. Louis, Kansas City & Colorado Railroad Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court.
Reversed and remanded.
J. A Talty and A. R. Taylor for appellants.
The court erred in sustaining the demurrer to the petition, the plaintiffs having filed their petition in the court on the second day of December, 1892, two days before the lapse of a year from the death of their father, had commenced their suit in time, and the statute did not bar them because the clerk neglected to issue the writ of summons until after the lapse of a year. The filing of the petition was the commencement of the suit. South Missouri Lumber Co. v. Wright, 114 Mo. 333, 334. This case was not before the trial judge at the time that he sustained the demurrer, or he would not clearly have done so if this case had been then decided. It is not deemed necessary to do more than call the attention of the court to the fact that the trial court sustained the demurrer, in direct conflict with the above cited decision. The case cited exhaustively treats the subject, as also the statute as amended, and we submit that the question is settled, that when the plaintiff has filed his petition in a court of competent jurisdiction, within the time provided by statute, he can not be barred by the neglect of the clerk in failing to issue within the statutory period. The case should be reversed and remanded for a trial.
Adiel Sherwood for respondent.
The action of the court in sustaining the demurrer to the petition was correct. It is true that the plaintiffs filed their petition on the second day of December, 1892, but this was only two days before the lapse of the year. The summons however, was not issued until after the year had passed, and until after the statute of limitations had run. R. S. 1889 secs. 4427, 4429. Appellants cite, in support of their contention, the case of South Missouri Lumber Co. v. Wright, 114 Mo. 333. It is respectfully submitted that that case was improperly decided, and should be overruled. To commence a suit, it is necessary to both file the petition and sue out process therein. R. S. 1889, sec. 2013. Filing the petition alone is not sufficient, and, if process is not sued out within the time allowed by statute for bringing the suit, the action will be barred. The words "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," were added to section 2013 by the legislature in the revision of 1889. Prior to that case, this court had repeatedly held that filing a petition with the clerk was the commencement of a suit. Certainly the amendment of the legislature was a vain and useless thing if it accomplished nothing more than to leave the law in exactly the same state as it was prior to the enactment of the amendment. The words "filing of the petition" need no construction. They are plain, definite and clear. The words "and suing out of process" have been frequently construed. The word "and" is a conjunction and is used to join the two necessary elements of the commencement of the suit, to wit, the filing of the petition and the suing out of process, showing the necessity of both these things before the suit shall have been commenced. "Suing out of process" -- "process" is so denominated because it "proceeds or issues forth in order to bring the defendant into court to answer the charge preferred, and signifies the writ or judicial means by which he is brought to answer." Davenport v. Bird, 34 Iowa 527. "The word 'process' has, in law, a well established legal meaning in its application to the commencement of the proceeding; it is used to designate the writ or other judicial means by which a defendant is brought into court to answer a charge, though there may afterward be issued, in the progress of the cause, interlocutory and final process." City of Phila. v. Campbell, 11 Phila. Rep. (Penn.) 164. "In short, it generally imports the writs which issue out of any court to bring a party to answer or for doing the execution." Pluester v. McClelland, 98 Eng. C. L. 359. Process, then, in the sense of the statute, is equivalent to summons. In short, is the same thing, which is defined as, "the name of a writ commanding the sheriff, or other authorized officer, to notify a party to appear in court to answer a complaint." Baird v. Pridmore, 31 How. Pr. (N. Y.) 362. Undoubtedly by the great weight of authority, an action Elliott Gen. Pr. sec. 303. Under the common law practice, the teste of the writ was the commencement of the action. This referred to the original writ; afterward, when a capias was issued which presumed the prior issuance of an original, the teste of the capias was the commencement of the action. 3 Black. Com. 272; Ib. 282; Spinning v. Ins. Co., 2 Disney (Ohio) 348. This has been followed from an early day in this country, the teste of the writ and its issuance being presumed to have been done on the same day, and this is a reasonable presumption, too, for it can not be reasonably said that the writ would be dated on one day and tested on another. Carpenter v. Butterfield, 3 Johns. Cas. 145; McCluskey v. Cromwell, 11 N.Y. 601. And this presumption is carried out in sec. 2014 of our Revised Statutes. The statute of Missouri is, for all practical purposes, the same as the statute of Indiana, and ought to have the same construction in Missouri as is given to it in Indiana. Ramsey v. Foy, 10 Ind. loc. cit. 498. This was an early decision, but the statute has been continued the same with the same construction. R. S. Ind. 1888, sec. 314. Time and again this court has declared the rule to be that our courts will give to a statute of another state, adopted by our legislature, the same construction as it has in the state from whence adopted. Skrainka v. Allen, 76 Mo. 384. From the earliest day in this country, the words "commence a suit" have meant the suing out of process or origination of a proceeding whereby an action in a court of law or equity is instituted to establish some right or redress some wrong. Wilson v. Baptist Society, 10 Barb. (N. Y.) 318. The definition of the verb "to sue out" given in the Century Dictionary, is, "to petition for and take out; apply for and obtain; as to sue out a writ in chancery; to sue out a pardon for a criminal." Century Dictionary, p. 6043. This definition is directly in line with our argument, and, we submit, with the plain intention of this amendment to the statute which uses the phrase, "suing out of process" that is, applying for and obtaining process. Brick Co. v. Barker, 50 Mo.App. 60; Watkins v. Railroad, 53 Mo.App. 662.
The only question in this case is, what constitutes the commencement of an action, with reference to the limitation of time for bringing it.
The question arises on these facts:
December 2, 1892, Annie McGrath was duly appointed next friend of three minors. On the same day, in that capacity, she filed a petition to recover of defendant statutory damages for the killing of their father.
In the petition it is alleged that the father was killed, December 4, 1891, in St. Louis, by an engine and train of the defendant, and that his death resulted from the negligent operation of the engine and train by defendant's servants in charge.
The particular negligence complained of is set forth in the petition; but it is not necessary to refer to it, further than to say that it purports to state a case for damages under chapter 49 (R. S. 1889).
After the filing of the petition, a summons was issued by the clerk, December 6, 1892. It was served upon defendant, December 13, 1892.
At the return term of the writ defendant demurred on the ground that it appeared on the face of the record that the suit "was not commenced until more than one year after the alleged cause of action accrued."
The trial court sustained the demurrer. The plaintiffs declined to plead further. Judgment was then rendered for defendant, and plaintiffs appealed.
It will be seen that the petition was filed within one year from the death of plaintiffs' father; but that the summons in the action was not issued within the year.
Defendant claims that the action was, therefore, in contemplation of law, not commenced within that period, which both parties concede as the term limited for bringing the action (R. S. 1889, sec. 4425).
Plaintiffs, on the other hand, contend that the filing of their petition was the commencement of the suit, so far as concerns any bar of limitation.
No technical objection is made to considering, in that form, the defense stated in the demurrer. Plaintiffs meet that issue on its merits, and we will deal with it in the same way.
The statute which governs the case was construed by this division of the court, in South...
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