West v. Engel

• Decision Date: 20 December 1893
• Citation: 101 Ala. 509,14 So. 333
• Parties: WEST v. ENGEL.
• Court: Alabama Supreme Court

14 So. 333

101 Ala. 509

WEST v. ENGEL.

Supreme Court of Alabama

December 20, 1893

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Action by Louis Engel against D. P. West, a hotel proprietor, for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Arrington & Graham, for appellant.

HARALSON J.

The undisputed facts of the case, as to the date of the commencement of this suit, are that the plaintiff received the injuries of which he complains on the 21st March, 1890 and the summons and complaint, which bear date the 16th March, 1891, were not delivered to the sheriff to be executed until the 6th day of April following, more than a year after said injuries were received, and the cause of action therefor accrued. Code, § 2619. It is provided by statute in this state, in the chapter on the limitation of actions, that "the suing out of the summons is the commencement of a suit, whether it be executed or not, if the suit be continued by an alias, or recommenced at the next term of the court." Code, § 2631. The occasion for the adoption of this statute was, no doubt, that it was the practice of the king's bench and common pleas in England, and in some of the states, not to hold the suit as commenced until the writ was served and returned. Johnson v. Farwell, 7 Greenl. 372. Under such a practice, the statute of limitations might be indefinitely suspended, putting it often in the hands of the parties on the one side or the other, as interest might suggest, to determine when a suit should be considered as commenced. It is of importance that the period of the commencement of the running of the statute of limitations of actions, and the end of its running, shall be definitely fixed in the law. It is said, therefore, that except in Connecticut and Vermont, the issuing or suing out of the writ is the commencement of the action, and in those states the service is the commencement. 1 Amer. & Eng. Enc. Law, 184, and authorities under note 4. When, then, may the summons be aid to be sued out? There seems to be no question as to what is meant by suing out of the summons. There is a uniformity of decision, so far as we have observed, that the term is construed as meaning when the writ leaves the hands of the clerk or his deputy, to be delivered in good faith to the sheriff to be executed. In Burdick v. Green, 18 Johns. 14, it was held that the issuing of the writ is the commencement of the action in all cases where time is material, so as to save the statute of limitations, and that it is not necessary to show that it was actually delivered to the sheriff, but it is sufficient if made out, and sent to him by mail or otherwise, with a bona fide intention of having it served. In Whitaker v. Turnbull, 18 N. J Law, 174, Chief Justice Hornblower reviewed many of the authorities, and announced the conclusion that when a writ is issued out of the office of the clerk, or of the attorney, as was usually the practice in that state, (presumably as the agent or deputy of the clerk,) in good faith, for the purpose of being served or proceeded on, and that purpose was not afterwards abandoned, it was, for all material purposes, the actual commencement of the suit. Ross v. Luther, 4 Cow. 158, is a case directly in point, where it was held that the issuing of the writ was the commencement of the action; that the mere filling it up is not sufficient; it must be either delivered to the sheriff, or sent to him by mail or otherwise, with a bona fide, absolute, unequivocal intention to have it served; that, if delivered to an agent or messenger who has power to determine when or whether it shall be given to the...