Moser v. Greyhound Lines, Inc.

O’CONNELL, C.J. In this action for damages, plaintiff appeals from the trial court’s order dismissing the eomplamt on the ground that the action was not commenced within the two-year period of limitations (ORS 12.110). The facts are not in dispute. Plaintiff’s cause of action against defendant for personal injuries was barred by the statute of limitations after August 10, 1972. On August 8,1972, the complaint was mailed from Bend, Oregon to the clerk of the Marion County Circuit Court in Salem, Oregon, for filing. At the same time, copies of the complaint and summons were mailed to the sheriff in Multnomah County for service on defendant’s registered agent in Portland. Due to the vagaries of the U. S. Postal Service, service to Portland was speedier than service to Salem. As a result, the summons and complaint were served on defendant’s agent at 8:35 a.m. on August 10, 1972, while the complaint was not filed in Salem until 1:05 p.m. on August 10,1972. On September 12, 1972, defendant moved to quash tliis service of process. On September 21, 1972, plain [284] tiff served defendant with a second summons. On September 27, 1972, defendant moved to quash-.the second service of process on the ground that service was effected beyond the two-year period of limitations and that plaintiff’s initial service was not a valid “attempt to commence” the action within the terms of-OES 12.030. On November 16, 1972, the court allowed both of defendant’s motions to quash, and on April 4, 1973, dismissed the complaint. Under OES 12.030 an attempt to commence an action is equivalent to the commencement of an action “when the complaint is filed, and the summons delivered with the intent that it be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided. It would be possible to construe this provision narrowly to mean that the statute of limitations was to be extended only in those cases where the defendant could not be found but where, in all other respects, the requirements for service of process had been met. We have not so construed the statute. In Kenner v. Schmidt, 252 Or 218, 229, 448 P2d 537 (1969), we decided that the statute should be construed “liberally to effectuate its purpose of granting additional time in which to serve the defendant.” Pursuing this liberal approach in construing the statute, we held in State ex rel Kalich v. Bryson, 253 Or 418, 453 P2d 659 (1969) that an attempt to commence an action was made within the meaning of the statute where the summons was ineffective because it failed to state the time when defendant was required to appear. In the present case the summons- was ineffective not because it failed to contain an essential element of [285] notice as in KalicJi, but because it was served before the complaint was filed. We see no reason for making a distinction between the two factual situations in the application of the statute. Two considerations should govern our application of the statute. First and principally, we must bear in mind that OES 12.030 is dealing with an aspect of the statute of limitations. The statute extends the limitational period 60 days under certain circumstances.① A liberal application of OES 12.030 does nothing more than add a short period to the statute of limitations. This is not inconsistent with the legislative policy underlying the statute of limitations generally. That ruitimely actions are not cut off automatically but only at the election of the defendant,② strongly indicates that delay in the prosecution of actions is not regarded as an evil of prime importance. The second consideration is the possible danger that relaxation in the application of the statute might invite carelessness on the part of lawyers in initiating lawsuits. Assuming this to be a factor, we do not think that it is important enough to vitiate the action in the present case. To make absolutely certain that the service of summons was made after the filing of the complaint, plaintiff’s counsel would have had to travel from Bend to Salem to file the complaint and thereafter proceed to obtain service of summons in Multnomah [286] county. Under these circumstances, we do not regard the mailing of the complaint and summons to he such carelessness as to disqualify the effort to initiate the action as an “attempt” under the statute. It has been suggested that we construe ORS 12.030 by turning to ORS 15.020 and treating ORS 12.030 as having application only if the complaint is filed before an effort is made to serve the summons. Concededly, a summons served before the complaint is filed is an ineffective summons. But a summons which fails to designate the time appearance, as in Kalich, after the complaint is filed is equally ineffective. The question in both cases is the same — does the service of the ineffective summons constitute an “attempt to commence an action” within the meaning of ORS 12.030? The fact that ORS 15.020 provides that the summons shall be issued any time after the filing of the complaint is not helpful in deciding whether the legislature intended to make this order of events essential to constitute an “attempt” under ORS 12.030. The judgment of the trial court is reversed. Footnotes [①] Prior decisions of this court have suggested in dicta that the 60-day extension runs from the time of the filing of the complaint. See Kenner v. Schmidt, 252 Or 218, 448 P2d 537 (1969); Bell et al v. Quaker City F. & M. Ins. Co., 230 Or 615, 370 P2d 219 (1962); Lang v. Hill, 226 Or 371, 360 P2d 316 (1961); Dutro v. Ladd, 50 Or 120, 91 P 459 (1907). This dicta is contrary to the explicit language of ORS 12.030 and therefore is repudiated. See 49 Or L Rev 337, 339-342 (1970). [②] ORS 12.010.