Taylor v. Superior Court In and For Maricopa County

• Decision Date: 03 September 1970
• Docket Number: CA-CIV,No. 1,1
• Citation: 474 P.2d 59,13 Ariz.App. 52
• Parties: Glenn C. TAYLOR and Louis A. Melczer, Co-Trustees for Coury Bros. Ranches, Inc., a corporation in reorganization under Chapter X of the Federal Bankruptcy Act, Appellant-Petitioners, v. The SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF MARICOPA; and the Honorable Yale McFate, a Judge thereof; and Chevron Chemical Company, a corporation; and California Ammonia Transport, a corporation, Appellee- Respondents. 1423.
• Court: Arizona Court of Appeals

Page 59

474 P.2d 59

13 Ariz.App. 52

Glenn C. TAYLOR and Louis A. Melczer, Co-Trustees for Coury Bros. Ranches, Inc., a corporation in reorganization under Chapter X of the Federal Bankruptcy Act, Appellant-Petitioners, v. The SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF MARICOPA; and the Honorable Yale McFate, a Judge thereof; and Chevron Chemical Company, a corporation; and California Ammonia Transport, a corporation, Appellee- Respondents.

No. 1 CA-CIV 1423.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 3, 1970.

Rehearing Denied Oct. 1, 1970.

Review Denied Nov. 17, 1970.

Snell & Wilmer, by Warren E. Platt, Phoenix, for appellant-petitioners.

Ryley, Carlock & Ralston, by John C. Ellinwood, Phoenix, for appellee-respondents.

Black, Robertshaw & Frederick, by Richard Black, Phoenix, for California Ammonia Transport.

HAIRE, Judge.

The appellant-petitioner's complaint alleging negligence on the part of the respondent-defendants was dismissed in the trial court in the grounds that the action was barred by the two year limitations statute (A.R.S. § 12--542). Although the complaint was admittedly filed one day before the expiration of the limitation period, the summons was not served upon the defendants until some nine months later. In the trial court's memorandum opinion the reason for the delay in service is stated as follows:

'* * * summons apparently misplaced after being, issued and returned to office of plaintiff's counsel; that (during most of the time in question) the capital stock of plaintiff corporation was pending sale during part of which time the corporate management had changed, and because of numerous intracorporate disputes and deteriorating financial condition, plaintiff was not aware that summons had not been served.'

There is no contention made that the delay on plaintiff's part was the result of a purposeful intent to postpone service of process.

A.R.S. § 12--542 provides that an action of the type here involved '* * * shall be Commenced and prosecuted within two years after the cause of action accrues, and not afterward. * * *' (Emphasis supplied). The trial court held that although the action was 'commenced' within two years, it was not 'prosecuted' within two years, and that no reasonable excuse appeared for failure to serve the summons during the nine month period after the filing of the complaint.

' Commenced and prosecuted within two years' does not mean that the case must be brought to a conclusion in two years, rather it means that the action must be commenced within two years, and must thereafter be prosecuted with reasonable diligence. McCarrell v. Turbeville, 51 Ariz. 166, 75 P.2d 361 (1938); W. T. Rawleigh Co. v. Spencer, 58 Ariz. 182, 118 P.2d 674 (1941); Cooper v. Odom, 6 Ariz.App. 466, 433 P.2d 646 (1967). The question before this Court is whether the nine month delay in serving summons upon the defendants constituted a failure to prosecute with reasonable diligence.

An almost identical question was presented in Gideon v. St. Charles, 16 Ariz. 435, 146 P. 925 (1915). In that case the plaintiff's complaint had been filed approximately one month before the expiration of the governing statute of limitations, but no summons was issued or served until approximately seven months later. In determining the applicable standard of reasonable diligence insofar as concerned the issuance and service of summons, the court referred to § 434, Revised Statutes of Arizona (1913), which provided that:

'* * * at any time within one year (after the filing of the complaint) the plaintiff may have a summons issued * * *.'

The court stated:

'The statute, as we see it, fixes the time for prosecuting the suit, after it is commenced as one year by providing that a summons may be issued within that time. In the absence of such a statute, the reasoning of the Texas rule would be applicable, and diligence and good faith would become a question of fact in all cases wherein there was delay in issuing or serving the summons after the expiration of the statute of limitation. The presence of the statute definitely fixes the time as one year after the commencement thereof by filing complaint, as the time within which it must be 'prosecuted' by issuing summons.' (16 Ariz. at 438, 146 P. at 927).

Under § 434, Revised Statutes of Arizona (1913), the plaintiff in Gideon was entitled to have a summons issued within one year after filing this complaint. Although not referred to in the opinion, another statutory provision, § 460, Revised Statutes of Arizona (1913), also gave plaintiff the right to have the summons issued and served at any time before the expiration of one year. ¹ While this latter statutory provision (§ 460)...