Wood v. Bissell

• Decision Date: 16 November 1886
• Docket Number: 12,838
• Citation: 9 N.E. 425,108 Ind. 229
• Parties: Wood et al. v. Bissell
• Court: Indiana Supreme Court

9 N.E. 425

108 Ind. 229

Wood et al. v. Bissell

No. 12,838

Supreme Court of Indiana

November 16, 1886

From the Marion Superior Court.

Judgment is reversed, at appellee's costs, and the cause is remanded, with instructions to the court to sustain the demurrer to the answer.

B. F Davis, for appellants.

D. M Bradbury, for appellee.

OPINION

Zollars, J.

Appellants brought this action against appellee upon an account, which accrued and became due on the 27th day of October, 1875. The complaint was filed on the 26th day of November, 1880. On that day a summons was issued to the sheriff, which, as stated in the record, was returned in due time, with an endorsement that appellee was not found. Nothing further was done in the case, in the way of getting service upon appellee, until the 28th day of June, 1882. On that day, upon an affidavit of the non-residence of appellee, publication of notice was ordered. On the 21st day of September, 1883, appellants made proof of publication, by which it was made to appear that the notice was first published on the 23d day of November, 1882. No question being made here as to the regularity of the notice, we decide nothing upon that question. The one question discussed by counsel is, when was the action commenced?

It is assumed on one side, and not much contested on the other, that if it was commenced after the expiration of six years from the time when the account accrued and became due, it can not be maintained, under our statute of limitations. R. S. 1881, section 292.

Appellee, relying upon that statute, pleaded the above stated facts, adding the averments, that the contract for the work, etc., out of which the account arose, was made in this State with an agent of appellee, and that from that time to this, he has been a non-resident of the State.

Section 314 of the Code R. S. 1881, is as follows: "A civil action shall be commenced, by filing in the office of the clerk a complaint, and causing a summons to issue thereon; and the action shall be deemed to be commenced from the time of issuing the summons; but as to those against whom publication is made, from the time of the first publication," etc.

There seems to be but one way to interpret this statute. It is plain and explicit, that as to those against whom publication is made, the action is commenced by the filing of the complaint, and the publication of the notice, and shall be deemed to be commenced from the time of the first publication.

Appellee was brought into court, if at all, by the publication of the notice, and that notice was first published more than seven years subsequent to the time when the account became due. The filing of the complaint, and the issuing of the summons to the sheriff, as heretofore ruled by this court, is the commencement of the action, as to those upon whom the summons is served, but not as to those who never are served, and as against whom publication is made.

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