Reliance Trust Co. v. Atherton

• Decision Date: 21 January 1903
• Citation: 93 N.W. 150,67 Neb. 305
• Parties: RELIANCE TRUST CO. v. ATHERTON.
• Court: Nebraska Supreme Court

67 Neb. 305

93 N.W. 150

RELIANCE TRUST CO.

v.ATHERTON.

Supreme Court of Nebraska.

Jan. 21, 1903.

Syllabus by the Court.

1. An action is not deemed commenced, within the meaning of the statute of limitations, at the date of the issuance of a summons, unless such summons is served on the defendant.

2. Where a summons is issued, but not served, and the defendant enters a voluntary appearance, the commencement of the action, within the meaning of such statute, dates from the entry of such appearance.

Commissioners' opinion. Department No. 3. Error to district court, Fillmore county; Stubbs, Judge.

Action by the Reliance Trust Company against H. A. Atherton. Judgment for plaintiff in county court was reversed in district court, and plaintiff brings error. Affirmed.George B. France and Arthur S. Wray, for plaintiff in error.

F. B. Donisthorpe, for defendant in error.

ALBERT, C.

For the sake of brevity and clearness, we shall call the plaintiff in error the “plaintiff,” and the defendant in error the “defendant,” as we may have occasion to refer to them in what follows. On the 1st day of September, 1900, the plaintiff filed a petition in the county court asking judgment against the defendant and another in the sum of $408.95 on a promissory note and interest coupons, both dated September 1, 1890, and both due and payable September 1, 1895. The petition shows on its face that the debt had been secured by a real estate mortgage of even date with the note, and that such mortgage had been foreclosed and the net proceeds credited on the principal note September 6, 1899. A summons issued for the defendants in that action on the date of the filing of the petition, and was returned on the 27th day of September, 1900. The officer's return thereto, omitting the venue, signature, and statement of costs, is as follows: “I hereby certify that on the 27th day of September, 1900, I served the within writ of summons on the withinnamed H. A. Atherton [[[the defendant], by delivering at residence a true copy of this summons, with all the indorsements thereon, as required by law. Austin M. Atherton [the other defendant] not in said county.” On the date of the return of the summons the defendant entered a special appearance in the case, and objected to the jurisdiction of the court on the ground that “no summons as required by law had been served on him.” The objection was sustained, whereupon, on the same day, namely, September 27, 1900, the parties, in open court, agreed to a continuance of the case, and no further attempt at service on the defendant was made. Afterward the defendant demurred to the petition on the grounds that the court had no jurisdiction of the subject-matter, and that the facts stated in the petition were insufficientto constitute a cause of action. The demurrer was overruled. The defendant then answered, relying on the statute of limitations as a defense. Upon a trial of the issues, the court found for the plaintiff, and gave judgment accordingly. The defendant prosecuted error to the district court, where the judgment of the county court was reversed, and the case dismissed. From the judgment of the district court, the plaintiff brings the case here by petition in error.

Counsel have not confined themselves in their argument strictly to the record, and we cannot undertake to follow them further than their arguments are drawn from the record presented to this court.

The principal question in this case is whether the county court erred in overruling the demurrer to the petition, and that question depends on whether it appears on the face of the petition that the cause of action was barred by the statute of limitations. The note and coupon, as before stated, both became due and payable on the 1st day of September, 1895. The statute of limitations, therefore, unless interrupted in some way, would have run against the cause of action not later than the 5th day of September, 1900. There is nothing on the face of the...