Wriedt v. Charlton, WD

CourtCourt of Appeal of Missouri (US)
Citation689 S.W.2d 788
Docket NumberNo. WD,WD
PartiesDonna Marie WRIEDT, Appellant, v. Dennis L. CHARLTON, Respondent. 36035.
Decision Date26 March 1985

Page 788

689 S.W.2d 788
Donna Marie WRIEDT, Appellant,
Dennis L. CHARLTON, Respondent.
No. WD 36035.
Missouri Court of Appeals,
Western District.
March 26, 1985.
Motion for Rehearing and/or Transfer to
Supreme Court Overruled and
Denied April 30, 1985.
Application to Transfer Denied
May 29, 1985.

Richard C. Thomas, Columbia, for appellant.

Louis J. Leonatti, Mexico, for respondent.


KENNEDY, Presiding Judge.

This is an appeal from an order dismissing plaintiff's wrongful death action as barred by the three-year statute of limitations, § 537.100, RSMo Supp.1979, after an evidentiary hearing on defendant's motion to dismiss.

We affirm.

The wrongful death action accrued on October 14, 1979, when Robert E. Wriedt died from injuries sustained while he was a passenger in a car driven by defendant. Plaintiff was decedent's wife. Her petition was filed in the Circuit Court of Macon

Page 789

County on September 3, 1982, within the three-year limitations period. The summons was sent to Platte County, to be served upon the defendant at the address furnished by plaintiff's attorney. Plaintiff's then attorney had gotten the address from the highway patrol report of the accident. The summons was returned non est. The return gratuitously noted: "By finding the defendant has not lived at given service address for at least two years as per present resident."

Plaintiff's attorney, perhaps not having seen the gratuitous information contained in the first return, had the summons sent to Jackson County for service upon the defendant at the same address as the first. This was returned non est.

A third (pluralis) summons was sent to Clay County for service upon defendant at another address. This proved to be the address of one Dennis E. Charlton, but not defendant. So once again there was a non est return. This final non est return was made on February 24, 1983, and apparently filed in the clerk's office on March 7.

The testimony of plaintiff's then attorney varies somewhat from the foregoing in details, but not in any essential matter. The foregoing chronology is taken from the court file.

Plaintiff's attorney testified that he then wrote two or three letters to plaintiff, seeking authority to hire a private investigator to track down the defendant. These letters were returned undelivered. He also attempted on a couple of occasions to reach her by phone but was unsuccessful.

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4 cases
  • Peltzman v. Beachner, WD
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Agosto 1991
    ...statutory period, even though the summons is not served upon the defendant until after the expiration of limitations. Wriedt v. Charlton, 689 S.W.2d 788, 789[1, 2] The question of whether a plaintiff acted diligently after filing the action to obtain service on the defendant is to be determ......
  • U.S. Laminating Corp. v. Consolidated Freightways Corp. of Delaware, 51526
    • United States
    • Court of Appeal of Missouri (US)
    • 26 Agosto 1986
    ...when there is a delay between the filing of the petition and the eventual service of process on the defendant. Wriedt v. Charlton, 689 S.W.2d 788 (Mo.App.1985) (13 month delay); Daniels v. Schierding, 650 S.W.2d 337 (Mo.App.1983) (5 month delay); Blanks v. Cantwell, 578 S.W.2d 349 (Mo.App.1......
  • Abbate v. Tortolano, WD
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Enero 1990
    ...of the limitation period, as long as the plaintiff exercises due diligence in obtaining service of summons. Wriedt v. Charlton, 689 S.W.2d 788, 789 (Mo.App.1985). Even though service on Mindermann was valid it cannot relate back as against Warfield Electric pursuant to Rule 55.33(c) in this......
  • Sandweiss v. Board of Adjustment of City of St. Louis, 59107
    • United States
    • Court of Appeal of Missouri (US)
    • 18 Junio 1991
    ...If petitioners do not use due diligence, the statute continues to run and the petition will be barred. Wriedt v. Charlton, 689 S.W.2d 788, 789 Whether due diligence is exercised is determined on a case-by-case basis. Factors to be considered include the length of the delay, the length of th......

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