Calkins v. Miller

Ragan, C. October 28, 1892, L. O. Calkins filed with the register of deeds of Knox county a verified account of items of material which he alleged he had furnished one H. N. Miller in pursuance of an oral contract with him for the erection of an improvement upon the latter’s real estate, and claimed a lien upon said real estate for the material so furnished. October 16, 1894, Calkins filed (a petition in the district court of said Knox county against Miller and a number of others, the object of which was to have established and foreclosed a lien upon the real estate of Miller for the material furnished to him for the erection of said improvement. At the date of filing this petition Calkins filed with the clerk a precipe for a summons for all the parties made defendants. The clerk neglected to issue a summons as requested until October 30,1894, on which date he issued a summons, which was personally served on Miller and another. October 15, 1894, Calkins filed an affidavit for constructive service upon a number of parties made defendants to the action brought against Miller. October 18, 1894, he caused a notice of the pendency of this suit to be first published, which notice fixed the answer day of the parties attempted to be constructively summoned for the second Monday in November, 1894, to-wit, November 19, instead of the third Monday, to-wit, Novem [603] ber 26, 1894, as required by tbe statute. Tbe parties upon whom Calkins attempted to obtain constructive sendee appeared specially and moved tbe court to quasb tbe constructive service or tbe service by publication, because tbe answer day was fixed by the notice published for tbe second instead of tbe third Monday after tbe service by publication was complete. This motion tbe court sustained. After tbe service of summons upon him, Miller died, and the action was revived in the name of bis administratrix. She and tbe other party personally served with summons answered tbe action of Calkins and pleaded as a defense thereto that bis action accrued more than two years prior to tbe date of tbe summons Avbicb was served upon them. To this answer Calkins replied, alleging tbe filing of bis petition October 16, 1894, tbe filing of tbe precipe for a summons, and that the fact that the summons which was personally served was not dated and issued until October 30, 1894, arose from tbe neglect of tbe clerk of tbe court. To this reply Miller and tbe other parties personally served demurred. Tbe demurrer was sustained and Calkins’ action dismissed. Calkins has appealed. 1. Tbe court did not err in quashing tbe service or attempted service by publication. Section 110 of tbe Code of Civil Procedure provides that tbe answer day of a defendant constructively served shall be tbe third Monday after tbe service by publication is complete. Tbe published notice takes tbe place of a summons and must inform the defendant on what date be is required to answer, and be must be required to answer on tbe date fixed by the Code. It is mandatory. Neither tbe courts nor tbe clerks of tbe court are invested with any discretion with respect to tbe time which a notice for publication shall be published, what it shall contain, nor on what date tbe defendant shall be notified that be is required to answer. (Crowell v. Galloway, 3 Neb. 215.) In Wilkins v. Wilkins, 26 Neb. 235, it was distinctly ruled that where service was had by publication only, and tbe notice required tbe party to answer on or before [604] tbe second Monday after tbe service was complete, instead of tbe third, such a service was irregular and would be set aside on motion. This ruling was followed and reaffirmed in Scarborough v. Myrick, 47 Neb. 794. 2. Whether the court erred in sustaining the demurrer of the parties personally served depends upon the question as to whether Calkins’ action, when brought, was barred by the statute of limitations. By section 3, chapter 54, Compiled Statutes, it is provided that the verified items of an account of labor and material filed with the register of deeds by a person who claims a lien upon real estate for labor and material furnished by him for the erection of an improvement upon such real estate in pursuance of a contract Avith the owner thereof shall operate as a lien for the period of tAvo years after the filing of such verified items of account. Calkins filed his claim for a lien October 28, 1892. This claim then ceased to be a lien October 28, 1894, unless the running of the statute had been arrested by the commencement of an action to establish and foreclose the lien prior to that date. Section 19 of the Code of Civil Procedure provides that an action shall be deemed commenced at the date of the summons Avhich is served upon the defendant. Here the summons that Avas served upon Miller and the other party personally served was dated October 30, 1894. Calkins’ action then was commenced October 30, and at that date Avas barred; and the court did not err in its ruling on the demurrer and in dismissing the action. (Monroe v. Hanson, 47 Neb. 30; Baker v. Sloss, 13 Neb. 230; Aultman v. Cole, 16 Neb. 4; Burlingim v. Cooper, 36 Neb. 73.) The case last cited Avas an action to foreclose a mechanic’s lien, and it was held: “If a summons is issued before the expiration of the two years from the filing of the lien, it may be served afterwards within the statutory time; but if not issued until after the expiration of two years, an action to enforce the lien will be barred.” The decree of the district court is right and is Affirmed.