Woodstock v. Whitaker, 3391.

• Docket Nº: 3391.
• Citation: 146 P.2d 779, 62 Nev. 224
• Case Date: March 10, 1944
• Court: Supreme Court of Nevada

146 P.2d 779

62 Nev. 224

WOODSTOCK
v.
WHITAKER.

No. 3391.

Supreme Court of Nevada

March 10, 1944

Appeal from District Court, First District, Churchill County; Clark J. Guild, Judge.

Action by George Woodstock, as administrator of the estate of Addie M. Williams, deceased, against W. W. Whitaker. From an order dismissing the action, plaintiff appeals.

Affirmed.

[62 Nev. 225] Carl F. Dodge, Jr., of Fallon, and Springmeyer & Thompson, of Reno, for appellant.

H. R. Cooke, Sidney W. Robinson, and Roy W. Stoddard, all of Reno, for respondent.

ORR, Chief Justice.

This appeal requires a determination of what constitutes the issuance of summons as that term is used [62 Nev. 226] in Section 8573, N.C.L.1929. It is asserted that the signing and sealing of a summons by the clerk of the court and the placing of the same in the hands of the attorney for the plaintiff constitutes an issuance of the summons. On the other hand it is argued that something more must be done, namely, that the summons be placed in the hands of some person qualified to serve process, or that it pass out of the hands of the party signing and sealing it, with the intent that it be placed in the hands of some one qualified to serve it in due course.

The following facts appear:

One Warren W. Williams died testate in Churchill County, Nevada, on or about January 27, 1914, leaving surviving him his wife, Addie M. Williams. Said Addie M. Williams died in Churchill County, Nevada, on or about March 3, 1940. At the time of the death of said Warren W. Williams and [146 P.2d 780] at all times to and including the date of her death Addie M. Williams was an insane person. All of the property owned by said Warren W. Williams at the time of his death was community property belonging to him and his said wife, and upon his death an undivided one-half interest in and to said property immediately vested in said Addie M. Williams, and remained in her at the time of her death. Pursuant to certain proceedings had in the district court of Churchill County the said Addie M. Williams was adjudged and declared an incompetent person and incapable of managing and handling her property and affairs. Two of her daughters were appointed guardians, one of whom died on or about January 9, 1934, and the other remained the duly appointed and acting guardian of Addie M. Williams until the death of the said Addie M. Williams on March 3, 1940. On or about April 29, 1941, George Woodstock was appointed administrator of the estate of Addie M. Williams, and on February 27, 1942, said George Woodstock, on behalf of the estate of said Addie M. Williams, deceased, filed a complaint with the clerk of the First Judicial District Court of the State of Nevada, in and for [62 Nev. 227] the County of Churchill. On February 27, 1942, the clerk of said court signed and sealed a summons and delivered it to appellant. Said summons remained in the possession of said appellant and was never delivered to the sheriff or other person to serve until on or about May 21, 1942.

The parties are agreed that the time for the commencement of the action in the district court is governed by the provisions of Section 8523 of the Nevada Compiled Laws 1929. The said action, in order to toll the statute of limitations, must have been commenced prior to March 1, 1942.

On or about June 1, 1942, respondent W. W. Whitaker filed his separate answer to the complaint, and on July 10, 1942, appellant filed his reply to said separate answer. On June 24, 1942, respondent Whitaker filed a motion for an order dismissing said complaint and action, and after hearing had and on September 15, 1942, the court granted said motion and ordered that the case be dismissed as to the respondent W. W. Whitaker.

The respondent contends that the said action was barred by the provisions of Section 8523, N.C.L., on March 3, 1942, because prior to said date the appellant had failed to perform all of the acts necessary for the commencement of an action, in that the summons had not been put out for service.

We conclude that the word "issuance" as used in Section 8573, N.C.L., means not only the act of signing the summons and the placing of the seal thereon, but also delivery to the sheriff or other person qualified to serve same, with the intent that said summons be served in due course. "Issuance" is defined as the act of sending out, to put into circulation. Webster, Unabridged. The following authorities support the conclusion we have reached: 37 C.J. 1055, par. 481; Snell v. Knowles, Tex. Civ.App., 87 S.W.2d 871; Ferguson v. Estes & Alexander, Tex.Civ.App., 214 S.W. 465; Creasy v. United States, D.C., 20 F.Supp. 280; Wilkins v. Worthen, 62 Ark. 401, 36 [62 Nev. 228] S.W. 21; State v. Cook, 84 Mont. 478, 276 P. 958; Smith v. Cashie & Chowan R. & L. Co., 142 N.C. 26, 54 S.E. 788, 5 L.R.A.,N.S., 439; Burton v. Deleplain, 25 Mo.App. 376; West v. Engel, 101 Ala. 509, 14 So. 333; McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152; ...