Stewart v. Petitt

Harper,* Special Judge, delivered the opinion of the court. Pettit sued Stewart to recover on a contract that became due [772] on. January 15, 1904. On January 9, 1907, Pettit presented his claim to the justice of the peace, and asked him to file the same, but directed him not to issue summons until he heard further from him. The summons was not issued, as -a matter of fact, until January 28th. There is some conflict and uncertainty in the testimony as to> the time when Pettit directed the justice of the peace to issue summons, appellant contending that the direction was not given until after January 15th; but both concede that it was some days after the filing of the claim, to wit, January 9th. The general rule seems to be clearly settled that a suit is not commenced until summons has been issued, and hence this suit was barred, unless prevented by our statute, Code 1906, § 728, on the bringing of suits, which is as follows: “Except in cases in which it is otherwise provided, the manner of commencing an action in the circuit court shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued; and an action shall, for all purposes, be considered to have been commenced and to be pending from the time of the filing of the declaration, if a summons shall be issued thereon for the defendant, and, if not executed, other like process, in succession, may be issued, in good faith, for the defendant.” It will be seen that the statute provides that the commencement of the suit shall date from the time of filling the claim or demand provided the summons shall be immediately issued. In the instant case the summons was not immediately issued, but was deliberately delayed by express order and direction of the plaintiff. Under such circumstances we are clear that the commencement of the suit cannot relate back to the time of the filing of the claim, but must be referred to the date of the issuance of the summons itself. The statute must be strictly complied with; otherwise the usual rule of law as to the commencement of suits must govern. Under our view of the law, it makes no difference when the direction for the issuance of the summons [773] was given, as tbe commencement of tbe suit must date either from the filing of tbe instrument itself, or from tbe actual issuance of tbe summons in good faith, and with intent that tbe same should be promptly served. ■ ■ Tbe judgment of tbe court below is reversed, and tbe cause remanded, to be proceeded with in accordance with this opinion. Reversed. Footnotes [*] One of the judges of the court being unwell, William R. Harper, Esa-, a member of the supreme court bar, was appointed and presided in his place in the trial and decision of this case^ ,