Meisel v. Piggly Wiggly Corp., 15637
| Decision Date | 03 September 1987 |
| Docket Number | No. 15637,15637 |
| Parties | Mark MEISEL, Plaintiff and Appellant, v. PIGGLY WIGGLY CORPORATION, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Kenneth E. Jasper of Jasper Law Office, Rapid City, for plaintiff and appellant.
Gene R. Bushnell of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee.
Plaintiff, Mark Meisel (Meisel), appeals from a summary judgment granted in favor of defendant Piggly Wiggly Corporation (Store). Summary judgment was granted on the ground that Meisel failed to commence this action for personal injuries before the applicable statute of limitations expired. We reverse.
Meisel filed a Summons and Complaint alleging that on January 25, 1983, as a result of Store's negligence, he slipped and fell on its premises. Store answered and asserted that Meisel's action was not timely commenced within the applicable three-year statute of limitations. 1
Since January 25, 1986, the last day of the three-year period fell on a Saturday, SDCL 15-6-6(a) extended the period of limitations until the end of the next day which was not a Saturday, Sunday or legal holiday. As a result, the period of limitation within which Meisel must have commenced this action expired on the next Monday, January 27, 1986.
Generally, an action is commenced in this jurisdiction by the service of a summons upon the defendant. SDCL 15-2-30. Although Meisel did not serve Store by January 27, 1986, he did cause the summons to be delivered to the Hughes and Meade County Sheriffs' offices for service at approximately 7 o'clock p.m. on January 27, 1986. 2
Meisel invokes SDCL 15-2-31 which provides for constructive commencement of an action and extends time for service for 60 days 3 when the summons is delivered to the sheriff or other authorized officer for service. SDCL 15-2-31 provides:
An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall 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. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days. (emphasis supplied)
In order for this extension to apply, the summons must be delivered to the sheriff on or before the last day for commencement of the action. Arbach v. Gruba, 86 S.D. 591, 199 N.W.2d 697 (1972).
On January 27, 1986, the summonses were hand delivered to on-duty sheriff's office employees other than the sheriffs themselves or the deputies who subsequently served the summonses. In Hughes County, a corrections officer accepted delivery of the summonses. In Meade County, a deputy accepted delivery of the summons. In each case the deputy responsible for service of civil process did not pick up the summons to serve it until the following day. In their official returns of service both serving deputies stated that they received the summonses on January 28, 1986. 4 The trial court held that the 60-day extension is applicable only when the summons is delivered to the sheriff himself or the officer authorized to serve the summons. The trial court concluded that because the deputies who actually served the summonses did not receive them until January 28, there was no delivery to the sheriff or other officer on January 27. 5 We disagree.
The affidavits submitted in opposition to the Motion for Summary Judgment established that the summonses were delivered to the respective sheriffs' offices on January 27, 1986, with intent that they be served. Hughes County Sheriff Arlo Mortimer stated that his records indicated, "our office received Summons and Complaints in (this) matter, on the 27th day of January, 1986, at approximately 7:00 P.M. by the same being hand delivered" to a corrections officer employed by Sheriff Mortimer. The corrections officer issued a written receipt for the process showing receipt on January 27, 1986, "for Arlo Mortimer, Sheriff". The summonses and complaints were placed in the "in basket" and the following day another deputy picked them up for service. Sheriff Mortimer stated his affidavit was made for the purpose of showing the summonses and complaints were received in his office by an employee "during the normal course of business". The affidavits from the Meade County Sheriff's office established essentially the same facts except the summons and complaint were delivered in that County to a deputy sheriff instead of a corrections officer and no written receipt was given. The question becomes one of whether a jailer or deputy sheriff employed by the sheriff for purposes other than serving civil process may accept delivery of process on behalf of the sheriff.
We have previously recognized that a deputy's authority in performing duties with respect to the service of process is derived from his relationship with his principal, the sheriff. Axtell v. Rooks, 39 S.D. 31, 162 N.W. 751 (1917). Even though a deputy employed by the sheriff actually serves the summons and complaint, it is the sheriff who is employed to serve the process and it is not material whether the sheriff performs the duties in person or performs them through a deputy. Williamson v. Lake County, 17 S.D. 353, 96 N.W. 702 (1903). When the deputy is acting under an appointment made by the sheriff, the deputy's services are binding on third parties and even though a deputy may serve the process, in the contemplation of the law, the process is served by the sheriff. Id. 96 N.W. at 703. We see no reason to fashion different rules of agency for those employees receiving process and those serving process on behalf of the sheriff.
Although there are no statutes specifically authorizing deputies, jailers or other employees to serve or accept delivery of process on behalf of the sheriff, SDCL 7-12-9 authorizes the appointment of such deputies, jailers and clerks as are necessary for the prompt dispatch of the business in the office of the sheriff. The statute does not restrict the duties such employees may perform. If appointments are made, the sheriff is responsible for the acts of each such deputy, jailer and clerk in the performance of the duties of the office. SDCL 7-12-11.
Sheriffs as employers may authorize their employees to perform acts on their behalf. Every act that may be legally done by a principal may be done by the agent of that person. SDCL 59-3-1. Clearly deputies, jailers and clerks may be agents of the sheriff with authority to carry out the business of the office of sheriff. The authorization to employ sheriff's office employees to carry out the business of that office necessarily includes the power of the sheriff to authorize employees to accept delivery of process as agents of the sheriff. The January 27th receipt of the summonses in the normal course of business by the deputy and jailer employed by their respective sheriffs to carry on the business of their offices, constituted delivery to the sheriff.
SDCL 15-2-31 only requires delivery to the sheriff or other officer of the...
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