Wolfenden v. Barry

• Decision Date: 08 April 1885
• Citation: 22 N.W. 915,65 Iowa 653
• Parties: WOLFENDEN v. BARRY
• Court: Iowa Supreme Court

22 N.W. 915

65 Iowa 653

WOLFENDEN v. BARRY

Supreme Court of Iowa, Davenport

April 8, 1885

Appeal from O'Brien District Court.

ACTION upon two promissory notes, one of which became due November 25, 1871, and the other November 25, 1872. The defendant pleaded the statute of limitations, and the plea was sustained, and judgment was rendered against the plaintiff for costs. He appeals.

AFFIRMED.

Milt. H. Allen, for appellant.

J. B Dunn, for appellee.

OPINION

ADAMS J.

The facts appear to be substantially as follows: The petition was filed November 1, 1881, and on the same day a notice was put into the hands of the sheriff for service. He neglected to make service of the notice, and afterwards made a return thereon to the effect that the same had not been served, and delivered the notice to the plaintiff's attorney, who lost the same. Nearly two years later another notice was drawn and put into the hands of the sheriff, and was duly served, and is the notice upon which the defendant was brought into court.

The question presented is as to when, under the statute, the action should be held to have been commenced. It is undisputed that, if the first notice had been duly served the action should be held to have been commenced when such notice was delivered to the sheriff for service, which was before the action upon either note was barred. Section 2532 of the Code provides that "the delivery of the original notice to the sheriff * * * with intent that it shall be served immediately, which intent shall be presumed unless the contrary appears, * * * is a commencement of the action." The plaintiff's position is that the action was commenced when the first notice was delivered to the sheriff, and that, having been commenced, it is immaterial whether that particular notice was served or not, or when the notice was served upon which the defendant was brought in. But in our opinion the plaintiff's position cannot be sustained. It seems to us to be manifest, from the very nature of the case, that the "intent" in regard to immediate service of the notice, which the statute contemplates, should be a continuing intent. When the intent is abandoned before service, we do not think it can be treated as having any legal effect. If, for instance the notice, though delivered with the intent that it should immediately be served, should be immediately recalled and permanently withheld, we do not see how the...