Slack v. Englert, 42559

• Decision Date: 14 April 1981
• Docket Number: No. 42559,42559
• Citation: 617 S.W.2d 483
• Parties: Robert L. SLACK and Torrey D. Slack, an Infant, by Robert L. Slack, Next Friend, Plaintiffs-Appellants, v. Larry N. ENGLERT, Wilfrid A. Meyer, Howard A. Borcherding and Oren Borcherding, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 483

617 S.W.2d 483

Robert L. SLACK and Torrey D. Slack, an Infant, by Robert L.

Slack, Next Friend, Plaintiffs-Appellants, v. Larry N. ENGLERT, Wilfrid A. Meyer, Howard A. Borcherding and Oren Borcherding, Defendants-Respondents.

No. 42559.

Missouri Court of Appeals, Eastern District, Division One.

April 14, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 15, 1981.

Application to Transfer Denied July 14, 1981.

C. Christy Barton, Barton & Waltz, Jefferson City, for plaintiffs-appellants.

Walter D. McQuie, Jr., Montgomery City, John E. Burruss, Hendren & Andrae, Jefferson City, David Oliver, Columbia, for defendants-respondents.

DOWD, Judge.

This is an appeal from an order of dismissal entered by the Gasconade County Circuit Court which sustained defendants-respondents' motion to dismiss plaintiffs-appellants' wrongful death action for failure to commence the action within the applicable limitation period. We reverse and remand.

Plaintiffs-appellants are the surviving spouse and all of the minor children of Susan D. Slack who died on July 15, 1978. Decedent was also survived by her mother. Pursuant to Section 537.080 RSMo 1978, appellants were required to commence their action within one year after the death of Susan D. Slack. ¹ State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976); Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976). Appellants filed their petition on July 13, 1979. Shortly after the petition had been filed appellants' attorney telephoned the circuit clerk and requested that summonses not be served immediately on respondents. The clerk's office issued the summonses on July 19, 1979, and the summonses were served on all respondents by July 24, 1979.

The basis for the trial court's dismissal was that appellants' action was not commenced by the timely filing of their petition when appellants' attorney requested that the circuit clerk not deliver the summonses to the sheriff for service.

The circuit clerk and appellants' attorney testified at a hearing on respondents' motions to dismiss. It was established that the petition was delivered by appellant, Mr. Slack, to the clerk's office on July 13, 1979. The petition was accompanied by a letter informing the circuit clerk that the statute of limitations on this suit expired July 15, 1979, and that it was "imperative that this suit be filed of record as of today (Friday, July 13)." The circuit clerk stamped the petition "Filed." Approximately one-half hour after the petition was delivered the circuit clerk received a telephone call from appellants' attorney, Mr. Barton. The circuit clerk testified that Barton wanted to know if the petition had been filed. Barton mentioned that settlement negotiations were underway and that it was not necessary to deliver the summonses immediately to the sheriff because he (Barton) believed that there would be a settlement forthcoming. Barton told the circuit clerk to hold up getting the summonses to the sheriff. The circuit clerk waited until July 19, 1979 to deliver them to the sheriff. The summonses were also issued on that date.

Barton testified that some three hours before he called the circuit clerk he had received a substantially increased settlement offer from an insurance company adjuster handling the settlement negotiations for all of the respondents in this case. Barton testified that he knew he could not contact appellant, Mr. Slack, on this day and requested the circuit clerk "to go ahead and issue the summons, but to hold the summons and the service copy of the petition and not deliver them to the sheriff until approximately Wednesday (July 18, 1979) of next week to give us an opportunity to see if the settlement negotiations could terminate the matter and, therefore, would not need to involve the actual service of the process and the involving of the insurance companies in the case." In short, Barton asked the circuit clerk to issue the summonses but not to deliver them to the sheriff for service until July 18, 1979, which was after the one year statutory period. As noted earlier, the summonses were issued and delivered to the sheriff on July 19, 1979.

We first consider whether appellants' wrongful death action was commenced upon the filing of their petition on July 13, 1979, notwithstanding the subsequent request by appellants' attorney to the circuit clerk concerning delivery of the summonses. Rule 53.01, effective since December 1, 1972, provides as follows: "A civil action is commenced by filing a petition with the court." In addition, Rule 54.01 provides that upon the filing of the petition the clerk shall forthwith issue the summons and deliver it to the sheriff.

Appellants contend that the filing of their petition on July 13, 1979, constituted the commencement of their action within the statutory period. Respondents, relying on several cases decided before the adoption of present Rule 53.01, contend that the concept of commencement of a suit upon filing is qualified when the plaintiff timely filed suit but actively obstructed the service of process until the limitation period had passed.

Former Rule 53.01, in relevant part, provided: "Civil actions may be instituted ... by filing in the office of the clerk of the proper court a petition ... and suing out thereon a writ of summons .... The filing of a petition and suing out of process therein shall be deemed the commencement of a civil action." Thus, adoption of amended Rule 53.01 resulted in the elimination of the "suing out of process" language. The effect of the amendment of Rule 53.01 was considered in State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391 (Mo. banc 1975). Schoenlaub involved a jurisdictional issue arising from the filing of divorce actions by both parties in different counties. In examining the purpose of amended Rule 53.01 the court quoted from the report of the Advisory Committee on Rules which read, in part, as follows:

"This is Federal Rule 3 with the term 'complaint' changed to 'petition.'

There are at least four situations in which the time the civil action begins is important:

1. Statute of limitations cases. Most of the cases are in this category. See Continental Electric Co. v. Ebco, Inc., 375 S.W.2d 134 (Mo.1964).

Cases under the present rule probably consistently hold that the civil action commences when filed if service is immediately made on the defendant. But when there is a delay in service for some reason or other there seems to be inconsistency. In Continental Electric Co. v. Ebco, Inc., supra, a statute of limitations case, the action was held to have commenced when service was secured while in Leavitt v. Lamb, supra, a partition suit, the court said the action commenced when the petition was filed.

There are two reasons why the committee recommends a change in the present rule and the adoption of the federal rule:

1. To remove the inconsistency in the present case law.

2. The bar and litigants are benefitted by uniformity in the two procedural systems which govern the assertion of their rights. If there were strong state policy reasons for retaining the present rule this would override the benefits of uniformity. The committee does not find any strong state policy reasons in this situation."

521 S.W.2d at 393-394.

The court in Schoenlaub noted that while the federal decisions construing the federal rule are not controlling in this state, they should be considered. Federal cases have construed the federal rule literally, holding that a statute of limitations is tolled merely by filing of the complaint. United...