Stevens v. Saunders

• Decision Date: 09 December 1975
• Docket Number: No. 13568,13568
• Court: West Virginia Supreme Court
• Parties: Daniel STEVENS and Maxine Stevens v. Robert SAUNDERS.

Page 887

220 S.E.2d 887

159 W.Va. 179

Daniel STEVENS and Maxine Stevens v. Robert SAUNDERS.

No. 13568.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1975.

Syllabus by the Court.

1. Statutes of limitation are statutes of repose and the legislative purpose is to compel the exercise of a right of action within a reasonable time; such statutes represent a statement of public policy with regard to the privilege to litigate and are a valid and constitutional exercise of the legislative power.

2. Code, 56--3--31, As amended, is in derogation of common law in allowing a summons to be served upon the Auditor in an action against a non-resident defendant and therefore must be strictly adhered to in accordance with its clear and unambiguous terms.

3. The mere signing of a summons does not, by itself, constitute an issuance. Process is not issued until the summons is sent from the clerk's office under his direction, sanction and authority for the purpose of service.

4. The plaintiff or his attorney bears the responsibility to see that an action is properly and timely instituted.

Ross Maruka, Frank C. Mascara, Fairmont, for appellants.

Herschel Rose and Duane Southern, Fairmont, for appellee.

BERRY, Justice:

Daniel Stevens and Maxine Stevens, the plaintiffs in a personal injury action in the Circuit Court of Grant County, appeal the judgment of that court dismissing their action on the ground that it was not properly commenced within the appropriate statutory period of limitations of two years.

On August 22, 1970, Daniel Stevens and Maxine Stevens, then husband and wife and residents of Marion County, West Virginia, were involved in an auto collision while traveling on U.S. Route 50 in Grant County, West Virginia. The collision occurred between the vehicle which was being driven by Daniel Stevens and in which Mrs. Stevens was a passenger, and another automobile which was owned and operated by Robert M. Saunders. At the time of the accident Saunders was a resident of Washington, D.C.

On August 21, 1972, the appellants filed a civil complaint in the Circuit Court of Grant County alleging that the negligence of Robert Saunders was the proximate cause of the auto collision and the resultant injuries. The complaint was filed by the appellants' attorney, Frank C. Mascara, who is a resident of and regularly practices law in Marion County, West Virginia. On the day of the filing of the comlaint, Mr. Mascara personally went to the office of the clerk of the Circuit Court of Grant County and presented to the clerk of that court an original and two copies of the comlaint, a memorandum for the issuance of a summons, three copies of a pre-prepared summons and the clerk's filing fee. In addition, the appellants' attorney had made arrangements for an agent of the Western Surety Company to be present to execute a statutory cost bond in the amount of $100.00 as required by Code, 56--3--31(a), As amended. The clerk filed the complaint and endorsed the summons with the date August 21, 1972. However, because the clerk was unable to obtain or prepare a bond form, no bond was executed. Instead, the clerk instructed the appellants' attorney to obtain the requisite form, have it executed and send it back to him by mail.

On August 22, 1972, Mr. Mascara prepared the bond and it was executed in Marion County by the appellants and their surety. On that date the bond was mailed to the clerk of the Circuit Court of Grant County for filing. On August 24, 1972, the bond was received by the clerk of the Grant County Circuit Court and marked 'approved'. In addition, the clerk endorsed the summons with his certification that the $100.00 bond had been given in accordance with Code, 56--3--31(a), As amended. The certification is dated the 24th day of August, 1972. Apparently on or shortly after this date, the clerk forwarded copies of the summons and complaint to the State Auditor as agent for the non-resident motorist. On August 28, 1972, the Auditor accepted service on behalf of the non-resident motorist.

After some delay, apparently occasioned by difficulties in discovering the appellee's proper address, on February 10, 1973, Robert Saunders received a copy of the summons and complaint by registered mail from the State Auditor's office. On February 24, 1973, the appellee filed a motion to dismiss and an answer, assigning as grounds for the motion and as an affirmative defense the alleged failure of the appellants to commence their action within the two year period of limitation. Following evidentiary hearings to develop the facts surrounding the filing of the complaint and bond and the issuance of the summons, the circuit court on March 14, 1974, granted the motion to dismiss, ruling that the '. . . plaintiffs failed to comply with the requirement of posting the statutory bond as required by law within the limitations period of Two (2) years from the date on which the Plaintiffs' claim accrued.'

The only issue presened for discussion here is whether the action was barred by the statute of limitations. The statute of limitations in West Virginia applicable to the case at bar is two years. Code, 55--2--12, As amended.

1,2] Initially, it is necessary to ascertain when the action was instituted or commenced. Rule 3 of the West Virginia Rules of Civil Procedure is dispositive of this question. The Rule reads as follows:

'A civil action is commenced by filing a complaint with the court and the issuance of a summons or the entry of an order of publication.'

The timely and proper filing of the complaint and issuance of a summons would toll the statute of limitations. However, in the instance of an action under the non-resident motorist statute, Rule 3 must be read In pari materia with Code, 56--3--31(a), As amended, which provides in relevant part:

'At the time of filing a complaint And before a summons is issued thereon, the plaintiff, or someone for him, shall execute a bond in the sum of one hundred dollars before the clerk of the court, with surety to be approved by said clerk, conditioned that on failure of the plaintiff to prevail in the action that he will reimburse the defendant, or cause him to be reimbursed, the necessary expense incurred by him in and about the defense of the action in this State, . . ..' (Emphasis supplied).

So, in an action involving a non-resident motorist no summons may be issued until a cost bond is executed before the clerk.

In the present case, the bond, which was executed in Marion County, was tendered to the clerk on August 24, 1972, after the statute of limitations had run. As a matter of law, the summons could not have been properly issued within the limitation period.

The statutes of limitation are statutes of repose and the legislative purpose in enacting such statutes is to compel the exercise of a right of action within a reasonable time. Humble Oil and Refining Company v. Lane, 152 W.Va. 578, 165 S.E.2d 379 (1969). Such statutes represent a statement of public policy with regard to the privilege to litigate and are a valid and constitutional exercise of the legislative power. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854, 27 L.Ed. 808 (1883). It should also be noted that Code, 56--3--31, As amended, is in derogation of common law in allowing the summons to be served upon the Auditor in an action against a non-resident defendant and therefore must be strictly adhered to in accordance with its clear and unambiguous terms. Crawford v. Carson, 138 W.Va. 852, 78 S.E.2d 268 (1953); Mollohan v. North Side Cheese Co., 144 W.Va. 215, 107 S.E.2d 372 (1959). Similarly, this Court has said on numerous occasions that statutes which require the giving of bond as a prerequisite to the prosecution of an appeal are strictly construed and their requirements are mandatory and jurisdictional. An untimely filing of such a bond dictates the dismissal of a case. Scott v. Coal and Coke Ry. Co., 70 W.Va. 777, 74 S.E. 992 (1912). See also, Hudgins v. Crowder and Freeman, Inc., W.Va., 191 S.E.2d 443 (1972); Gaines v. Hawkins, 153 W.Va. 471, 170 S.E.2d 676 (1969).

It is the contention of the appellant that the action was commenced on August 21, 1972, the date on which the clerk of the Circuit Court of Grant County signed the summons, and which was within the two year period of the statute of limitations.

The mere signing of a summons does not, by itself, constitute its issuance. It is a fundamental rule of law that process is not issued until the summons is sent from the clerk's office under his direction, sanction and authority for the purpose of service. Nicholas Land Company v. Crowder, 127 W.Va. 216, 32 S.E.2d 563 (1944); Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912 (1895); Deboer v. Fattor, 72 Nev. 316, 304 P.2d 958 (1956); McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931); Snell v. Knowles, 87 S.W.2d 871 (Tex.Civ.App.1935). This general rule is summarized at 62 Am.Jur.2d Process § 5 (1972), as follows:

'Where the clerk of the court is charged with the issuance of process, process can be said to be issued only where it is sent forth from the clerk's office under his sanction and authority and delivered to an officer or to someone else . . . in order that it may be served. Indeed, it is said to be the prevailing rule that the issuance of a summons is not complete until it is prepared by the clerk and delivered to the officer or person authorized to serve it, with the intention of having it served.'

In Webster v. Sharpe, supra, a case which involved circumstances quite similar to those before us here, it was held that where a summons was executed but held by the clerk pending the giving of a prosecution bond, such action by the clerk did not constitute issuance of the summons. In that case the court stated:

'If the clerk delivers it (the summons) to the sheriff to be served, it is then issued; or if the clerk...