Weisburgh v. McClure Newspapers, Inc., 94-78

• Decision Date: 11 January 1979
• Docket Number: No. 94-78,94-78
• Citation: 396 A.2d 1388,136 Vt. 594
• Parties: Bernard WEISBURGH v. McCLURE NEWSPAPERS, INC., et al.
• Court: Vermont Supreme Court

Page 1388

396 A.2d 1388

136 Vt. 594

Bernard WEISBURGH v. McCLURE NEWSPAPERS, INC., et al.

No. 94-78.

Supreme Court of Vermont.

Jan. 11, 1979.

Catherine W. Scott and Frank G. Mahady, Office of Frank G. Mahady, White River Junction, and Richard I. Burstein, Randolph, for plaintiff.

Clarke A. Gravel, Burlington, for McClure Newspapers, Inc.

Paul D. Sheehey, Burlington, for Mt. Mansfield Television, Inc.

Donald E. O'Brien, Burlington, for Vermont Pub. Corp.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

The issue in this proceeding relates to the statute of limitations, 12 V.S.A. § 512. A law suit was commenced by the plaintiff by filing a complaint in the office of the superior court clerk on August 10, 1976. This was about two weeks prior to the expiration of the applicable three year statutory limitation. The thirty day period within which service of process must be made under V.R.C.P. 3 expired before arrangements were made for an officer to complete service. No motion to enlarge the time for completing service under V.R.C.P. 6 was made within the period. As a result, this action was dismissed.

As the order dismissing this complaint points out, if the filing of a complaint is to be effective in tolling the statute of limitations as of that filing date, timely service under the Rules of Civil Procedure must be accomplished. This has long been a requirement of our law, paralleled by the kind of relief afforded by 12 V.S.A. § 558 from statute of limitations' restrictions. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 361, 76 A.2d 548 (1950), cited by the plaintiff in his memorandum filed below, reflects this longstanding rule requiring proper completion of service.

12 V.S.A. § 466, effective March, 1972, does not relieve the plaintiff from the requirements of V.R.C.P. 3. As the Reporter's Notes to that rule explain, V.R.C.P. 3 is not a restriction on 12 V.S.A. § 466, but, to the contrary, 12 V.S.A. § 466 was passed in conjunction with the Rules of Civil Procedure. Its purpose was to substitute the date of filing with the clerk or the date of service, according to the mode of commencing the litigation chosen, for the old standard using the date of the complaint. Neither the rule nor the statute indicate any purpose to alter the substantive requirement of the rule of Bethel Mills, Inc. v. Whitcomb, supra, and we so hold.

Instead of appealing the dismissal of his first complaint, the plaintiff brought a new complaint for the same cause of action, invoking 12 V.S.A. § 558(a) as a bar to the defense of the statute of limitations. This section reads:

The plaintiff may commence a new action for the same cause within one year after the determination of the original action, when the original action has been commenced within the time limited by any statute of this state, and the action has been determined for any of the following reasons:

(1) Where the action is dismissed for insufficiency of process caused by unavoidable accident or by default or neglect of the officer to whom the process was committed;

(2) Where the action is dismissed for lack of jurisdiction of the subject matter or person, improper venue, or failure to join an indispensable party;

(3) Where the action is defeated or avoided by the death of a party thereto;

(4) Where judgment for the plaintiff is reversed on appeal on one of the grounds listed in paragraphs (1) and (2) of this section.

The benefits of this statute are available only to those coming within its provisions. Leno v. Meunier, 125 Vt. 30, 33, 209 A.2d 485 (1965). The crucial issue here is the failure to...