Eaton v. Chapin

7 R.I. 408

Opinion

Bullock, J.

The second replication alleges, that within six years next after the several causes of action declared upon accrued, the plaintiff sued out of the Supreme Court of the county of Providence her writ, and delivered the same to T\(illiam H. Hudson, then a deputy sheriff of ¿aid county, for service, who thereafter, and on the return day thereof, duly returned the same without Service, for want of the body, goods and chattels, or real estate, or of any last and usual place of abode of the defendant to be by him found, within his precinct; 'and that, within one year from the issuing of said first writ, the plaintiff sued out of the same court a second writ for the same causes of action. To this replication, the defendant demurs.

Section 8, Ch. 177, of the Revised Statutes, declares, that if “ any action, duly commenced within the time limited ” by law, “ shall be abated, or otherwise avoided or defeated,” “ for any matter,” “ the plaintiff may commence a new action for the same cause, at any time within one year after the abatement, or other determination, of the original suit.” It has been decided that the act of suing out a writ is the commencing of an action, within the meaning of the statute of limitations ; Hall v. Spencer, 1 R. I. Rep. 17; and, that if the officer to whom suclj writ is delivered is unable to make service of it, it is, nevertheless, such a commencing of an action as entitles the plaintiff to sue out a second writ for the same cause of action within one year. Taft & Co. v. Daggett, 6 R. I. Rep. 272.

The demurrant, without controverting the authority of these decisions, contends, that a party, to avail himself of the exception of the statute, should plead specially every fact necessary to bring his case within its operation ; and that, inasmuch as the statute (Ch. 178) requires a writ of summons to be directed to ,the sheriffs of the several counties or to their deputies, the replication should show, affirmatively, that the writ sued out in the first action was so directed. The replication demurred to alleges that the plaintiff “ sued out of the Supreme Court of the county of Providence ” “ a writ of summons against the defendant,” and for the recovery of these identical causes of action. The. statute last referred to (Ch. 178) enacts what the form of a writ of summons shall be, to whom it shall be directed, how it shall issue, &c. If it be necessary to aver to whom this writ was directed, it would seem equally necessary to aver that it was issued in the name of the State ; that it bore the seal of the court and the signature of the clerk, and was tested in the name of the Chief Justice. We do not deem-any such averment necessary. The allegation, that a writ of summons issued, implies that it was such a writ of summons as the statute recognizes and enacts, and that the writ contained within itself all the essentials which the enacting power has required to constitute it such. Any state ment of details, coupled with the plain-and positive averment that a-writ of summons issued, would be mere surplusage, and would make the pleadings more prolix, but not moré certain. If the writ sued out was not, in fact, what the plaintiff avers it to be, the defendant should traverse the averment.

The demurrant insists further^ that the second replication is defective in this, — that' it omits to allege that when the writ in the original action was sued out, the defendant was a resident of the county of Providence, or had property there upon which process could be served, or had there, a last and usual place of abode; and that the allegation, that such writ was placed in the hands of a deputy sheriff of that county, is not sufficient, without' the superádded averment\that the defendant was then a resident of such county, or had property there liable to attachment. The writ issued in the original action is not before us. It' 'does not, therefore, appear what residence was given to the plaintiff in that writ; neither, that he was not therein described as of Providence county. It does not appear by the pleadings that he was not, at that time, in fact, a resident of that county, only so far as it may be negatived by the allegation that the officer could not make service of the writ. But we do not deem this matter, in the present state of the pleadings, material. The question raised by the 'demurrer is¿ the sufficiency of the replication, — does it answer the defendants plea ? He alleges that the cause of action did not accrue within six years; this the plaintiff admits, but seeks to avoid its legal effect by showing that, within the six years, he sued out of the Supreme Court of this county a writ upon the same cause of action, and delivered it to an officer authorized to serve it, and that the suit was defeated for want of service, and that within one year thereafter he commenced this action. This is all the, statute requires, to prevent the cause of action from being barred. If it be necessary to allege, affirmatively, that the defendant was then a resident of Providence county, it would be also necessary to' set out specially every other fact upon which the jurisdiction of the court depends. The replication shows the seasonable commencement of a suit by the issuing of a writ, returnable to a court competent to try such a cause of action. These averments the demurrer confesses. If that court did not have jurisdiction from any special cause, and such cause will avail the defendant, it is for him to bring such cause upon the record by a proper plea. The declaration in this suit describes the defendant as a resident of Providence county, but that may not conclude the question of the jurisdiction to which he was subject at the time of the issuing of the former writ.

The due commencement of an action is, the suing out, from a court competent to adjudicate upon the cause of action, a proper writ, that is, a writ' adapted to the cause of action, with the intent to implead the defendant in such action. Service of the writ is not essential, and may be, at the time, impracticable. One object in extending the time of the limitation was to meet the case of a non-service of the first writ. The plaintiff is bound to ordinary diligence to bring the defendant into court, and this implies the seasonable delivery of the process to a proper officer of the precinct or jurisdiction in which the plaintiff has reasonable grounds to suppose the defendant resides or may be found, or has property. And hence it was 'held, under a statute similar to our own, that the suing out of a proper writ and the delivery thereof to an officer in the town where the defendant formerly resided, but from which he had removed two years previous without the plaintiff’s knowledge, in consequence of which removal service was not made, was such a commencement of the action as entitled the plaintiff to sue again within the one year. Bullock v. Dean, 12 Metc. 15. And in Woods et al. v. Houghton, 1 Gray, 580, where the writ was returnable to the court of one county, the defendant residing in another, and the suit was accordingly, upon motion, dismissed for want of jurisdiction, this action was held to be duly commenced within the meaning of the Massachusetts statute of limitations. These decisions are consonant to the reason of the law and the general policy of statutes of limitation. These statutes are liberally construed for the benefit of plaintiffs, for the reason that the bar they interpose is not founded upon an actual extinguishment of the cause of action, but its presumed extinguishment from lapse of time. They are predicated upon a continued neglect or omission on the part of a claimant to enforce his claim. But no such neglect is chargeable to a party who is suing his claim, though the particular mode and process adopted may, for the 'tinie, prove ineffectual. The language of our statute is broad. It, declares that if the first action, being duly commenced, shall’ be abated or otherwise avoided-or defeated JoP'any matter, a second action for the same cause may be brought within one year thereafter. If a plaintiff, therefore, in good faith, sues out his first writ within the time of the general limitation, describing the defendant therein as of a jurisdiction last known to the plaintiff as. his residence, and seasonably delivers, the writ to -an officer authorized to serve it within that jurisdiction, the plaintiff intending to declare against and implead the defendant in such action if process is served, we deem this such a due commencing’ of his action within the meaning of the statute, as will take the* cause of action out of the operation, of the general limitation, and will entitle the plaintiff to sue again, for the same cause, within one year thereafter.

The demurrer to the second replication ds therefore overruled.