Smith v. Day

• Decision Date: 29 April 1901
• Citation: 39 Or. 531,64 P. 812
• Parties: SMITH v. DAY et al.
• Court: Oregon Supreme Court

64 P. 812

39 Or. 531

SMITH v. DAY et al.

Supreme Court of Oregon

April 29, 1901

Appeal from circuit court, Multnomah county; A.F. Sears, Jr., Judge.

Action by Henry Smith against The Dalles, Portland & Astoria Navigation Company and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The purpose of this action is to recover damages for an alleged joint tort committed on the 10th day of December, 1895, by the defendants J.G. and I.N. Day and The Dalles, Portland &amp Astoria Navigation Company at the Cascade locks in Wasco county. The navigation company is a domestic corporation having its principal place of business at the city of The Dalles, in said county, while the defendants J.G. and I.N Day are co-partners, and claim to be citizens and inhabitants of the state of California. The complaint was filed March 30 1896, and on the next day an attempt was made to serve the summons upon the corporation by delivery of a copy thereof to J.N. Harney, its agent in Multnomah county, where the action was instituted, which was quashed October 20th following, on motion of said defendant appearing specially for that purpose. On April 10, 1896, the cause was removed into the federal court on the petition of J.G. and I.N. Day, and on January 3, 1898, an alias summons was delivered to the sheriff of Wasco county, and by him served upon said corporation, which filed a demurrer to the complaint, assigning, among othergrounds therefor, that the action was not commenced within two years from the time of the plaintiff's alleged injury. The demurrer having been sustained, judgment was entered dismissing the action, and the plaintiff appeals.

E.B. Watson, for appellant.

F.P. Mays, for respondents.

WOLVERTON J. (after stating the facts).

This case may be disposed of upon the single question presented by the demurrer. An action is deemed commenced as to each defendant when the complaint is filed and the summons served upon him or on a co-defendant who is a joint maker or otherwise united in interest with him; and an attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of the statute of limitations when the complaint is filed, and the summons delivered with the intent that it be actually served to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided. Hill's Ann.Laws Or. §§ 14, 15. It may be conceded for the purposes of this case that the defendants are jointly liable ex delicto to the plaintiff, but, while so amenable, they are also severally liable, so that a several as well as a joint action might have been instituted in the first instance. The record shows that on April 7, 1896, the court made an order removing the cause to the federal court upon the application of the Day firm, concerning the effect of which the parties disagree; the defendant claiming that the entire cause was thereby transferred, while the plaintiff urges that the order was not adequate to effectuate a removal under the conditions prevailing, but that, if it be deemed effective at all, it merely operated to remove the cause as to the Days, leaving it pending in the state court as to the corporation. The case was not susceptible of a removal as a separable controversy without the consent of the plaintiff. He had his election to sue the defendants either jointly or severally, and, having adopted the joint action, he had the right to have it continued in that form if he so desired, but he could consent to a severance. It was held in Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co., 26 C.C.A. 146, 80 F. 767, that the defendant in error, by not objecting to the removal nor interposing a motion to remand and by proceeding to trial without protest and taking a separate judgment against the guarantee company, consented to the severance of the joint into several actions; one remaining in the state court, while as to the other the federal court very properly assumed jurisdiction on the ground of diverse citizenship. It is shown by affidavit in the case at bar that the cause was tried out in the federal court, and a verdict rendered and judgment given against the plaintiff, subsequently to January 24, 1898, and that no order was ever made and entered remanding it to the state court. While the competency of this affidavit as a factor in the consideration of the demurrer may be questioned, yet we are bound to assume from the very fact that the removal was had, and the cause has remained so long in the federal court, that it was either regularly made, which would carry the entire cause to that court ( Barney v. Lathan, 103 U.S. 205, 26 L.Ed. 514; Connell v. Smiley, 156 U.S. 335, 15 Sup.Ct. 353, 39 L.Ed. 443; Rich v. Gross, 29 Neb. 337, 45 N.W. 468...