Reliance Trust Co. v. Atherton

Albert, 0. For the sake of brevity and clearness we shall call the plaintiff in error the plaintiff, and the defendant in error the defendant, as we may have occasion to refer to them in what.follows. On the 1st day of September, 1900, the plaintiff filed a petition in the county court asking judgment against the defendant and another in the sum of $408.95 on a promissory note and interest coupons, both dated September 1, 1890, and both due and payable September 1, 1895. The petition shows on its face that the debt had been secured by a real estate mortgage, of even date with the note, and that such mortgage had been foreclosed and the net proceeds credited on the principal note September 6, 1899. A summons issued for the defendants in that action on the date of the filing of the petition, and was returned on the 27th day of September, 1900. The officer’s return thereto, omitting the venue, signature and statement of costs, is as follows: “I hereby certify that on the 27th day of September, 1900, I served the within writ of summons on the within named H. A. Atherton [the defendant] by delivering at residence a true copy of this summons with all the indorsements thereon as required by law. Austin M Atherton [the other defendant] not in said county.” On the date of the return of the summons the defendant entered a special appearance in the case and objected to [307] the jurisdiction of the court on the ground that “no summons as required by law had been served on him.” The objection was sustained, whereupon, on the same day, namely, September 27, 1900, the parties, in open court, agreed to a continuance of the case, and no further attempt at service on the defendant was made. Afterward, the defendant demurred to the petition on the grounds that the court had no jurisdiction of the subject-matter, and that the facts stated in the petition were insufficient to constitute a cause of action. The demurrer was overruled; the defendant then answered, relying on the statute of limitations as a defense. Upon a trial of the issues, the court found for the plaintiff and gave judgment accordingly. The defendant prosecuted error to the district-court, where the judgment of the county court was reversed and the case dismissed. Prom the judgment of the district court the plaintiff brings the case here by petition in error. Counsel have not confined themselves in their argument strictly to the record, and we can not undertake to follow them further than their arguments are drawn from the record presented to this court. The principal question in this case, is whether the county court erred in overruling the demurrer to the petition, and that question depends on whether it appears on the face of the petition that the cause of action was barred by the statute of limitations. The note and coupon, as before stated, both became due and payable on the 1st day of September, 1895. The statute of limitations, therefore, unless interrupted in soma way, would have run against the cause of action not later than the 5th day of September, 1900. There is nothing on the face of the petition to show that the running of the statute had ever been interrupted. It is true there is a credit indorsed on the principal note, but the language of the indorsement and of the petition show that it was not a voluntary payment on the part of the defendant; merely a payment made by indorsing the proceeds of a sale of the property by legal process. A payment thus made does not interrupt the running of the [308] statute. That being true, the cause of action was barred after September 5,1900, and the question now arises, when was the action commenced in the county court? Section 19 of the Code of Civil Procedure, which is a part of the statute of limitations, is as follows:’ “An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.” It will be observed that the mere filing of a petition and the issuance of a summons is not the commencement of an action, within the meaning of the section just quoted. The summons issued must be the summons which is actually served on the defendant. In the present case the record fails to show that the summons issued on the 1st day of September, 1900, which is the only summons issued in the case, was served on the defendant. The return of the officer is wholly insufficient to show such service. It merely recites that the summons was served “by delivering at residence a true copy of the summons with all the indorsements thereon.” It does not show at whose residence the copy was left; and even if it should be claimed that the residence of the defendant is implied, —an implication which we deem wholly unwarranted, — it is still open to the objection that the statute in regard to substituted service is not satisfied by leaving the copy of the summons at the residence of the defendant. It must be left at his usual place of residence in the county. No attempt was made, so far as the record shows, to amend the return of the officer; and the county court, when its jurisdiction was assailed, properly held that it had no jurisdiction over the person of the defendant. From these facts but one inference can be drawn, and that is that the summons issued on the 1st day of September, 1900, was never served on the defendant, and therefore is not the summons contemplated by section 19, supra. Therefore the appearance of the defendant, after the ruling of the court on his [309] objection urged in Ms special appearance, was purely voluntary. Had the defendant refused to enter a voluntary appearance, the plaintiff, in order to give the court jurisdiction, would have been compelled to have an alias summons issue, which would have been issued too late to prevent the running of the statute. The entry of a voluntary appearance was not a waiver of the past omission to have service on the defendant, but was a waiver of a present right to insist on the issuance and service of an alias summons, and should not be held to place the defendant in any worse position than he would have occupied had he awaited the issuance and service of an alias summons. In our opinion, therefore, the action was not commenced, within the meaning of the statute of limitations, until the defendant entered a general appearance, which was after the cause of action was barred. The overruling of the demurrer to the petition by the county court was error, and justifies the judgment of reversal in the district court. It is therefore recommended that the judgment of the district court be affirmed. Duffie and Ames, CO., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.