Piersma v. Seitz

271 A.2d 199, 10 Md. App. 439, 1970 Md. App. LEXIS 261

• Court: Court of Special Appeals of Maryland
• Decided: November 25, 1970
• Docket: 224, September Term, 1970
• Status: Published

Opinions

Murphy, C.J.,

delivered the majority opinion of the Court. Orth, J., dissents. Dissenting opinion by Orth, J., at page 444 infra.

On April 19, 1965, the motor vehicles driven by appellant and appellee were involved in a collision in Prince George’s County, as a result of which appellee on April 18, 1968 — one day before the statute of limitations would have barred the action — sued appellant for personal injuries in the Circuit Court for Prince George’s County. The summons issued for appellant was returned non est (moved) on April 25, 1968. By letter dated May 17, 1968, the Clerk of the Court so notified appellee’s counsel and requested that he “issue written instructions to this office for purposes of re-issue and service by the Sheriff.” Appellee’s counsel did not respond to the Clerk’s letter and the summons was not reissued. On November 14, 1968, the case was placed on the stet docket. Subsequently, in March of 1969, appellee located appellant living in Pennsylvania and service was effected upon her. Appellant pleaded limitations. That defense was held without merit and the case was eventually tried before a jury which awarded appellee judgment in the amount of $15,-000.

Appellant claims on appeal that while the suit was filed within the statutory period of limitations, the action was discontinued as barred by limitations because the appellee did not obtain two successive returns of non est before allowing the summons to lie dormant. He relies on Neel v. Webb Fly Screen Mfg. Co., 187 Md. 34; Maryland Rule 112, and Rule 108 of the Rules of Court of the Seventh Judicial Circuit.

It is well settled that for the purpose of preventing the running of the statute of limitations the impetration of the original writ is deemed the commencement of the suit. Logan v. State, Use of Nesbitt, 39 Md. 177. At common law, where the party instituted the suit within the period of limitations but the summons proved ineffectual to bring the defendant into court, it was necessary, in order to keep the suit alive, that such summons be regularly renewed from term to term until the defendant was served; and the omission so to renew operated as a discontinuance of the action. Hazlehurst v. Morris, 28 Md. 67. Statutes declaratory of the common law were enacted in 1864, 1886, and 1888; “they merely established more frequent — and finally monthly — ‘return days’ in lieu of the thrice yearly ‘term days.’ ” Renewal of Process and the Statute of Limitations, 9 M.L.R. 74, 76. Subsequently, by Chapter 180 of the Acts of 1894, it was provided that in the courts of the City of Baltimore, where summons had been returned not executed, “the same may be renewed,” and that “after two returns of any original writ not executed at the two succeeding return days after the writ is first issued, the same shall be permitted to lie dormant, * * Substantially identical provisions were subsequently enacted for the various Circuit Courts of the counties by Chapter 240 of the Acts of 1914.

In Neel v. Webb Fly Screen Mfg. Co., supra, decided in 1946, the Court of Appeals, in interpreting these statutes modifying the common law rule, held that after two ineffective issues of the summons (at two successive return days) the suit was kept alive and not barred by limitations for failure thereafter to renew the summons. The statutes interpreted in Neel were repealed by Chapter 399 of the Acts of 1957; they were in effect superseded by Maryland Rule 112 entitled “Renewal of Process — Dormant Process,” which reads as follows:

“a. Once as of Course, by Clerk.

Upon the return of the summons to a party endorsed non est, the same shall be renewed by the Clerk as a matter of course, returnable to the next return day.

b. After Two Non Ests, to Lie Dormant.

After two returns of non est, the summons to a party shall be permitted to lie dormant, renewable only on the written order of the plaintiff to such future return day as’ the plaintiff may direct.

c. Further Renewal.

Thereafter, upon a further return of non est, said summons shall again be permitted to lie dormant, renewable only as aforesaid, the said plaintiff having the right to renew said summons to as many subsequent return days, under the same mode of procedure as may be deemed proper, until the same is executed.”

The requirement that the Clerk renew the summons “as a matter of course” imposes upon him, as a matter of law, a non-discretionary, wholly automatic duty, to reissue the summons so returned non est, returnable to the next return day. The Rule can bear no other interpretation; the Clerk’s duty is not, as appellant suggests, dependent upon a request of the party seeking service of the summons.

Rule 108 of the Seventh Judicial Circuit, under which the Clerk acted in asking appellee’s counsel to provide written instructions for reissuance of the summons, reads:

“The Sheriff shall promptly make his return to the Clerk of the Court. If process has not been served, the return shall state the reason why and the Clerk of Court shall forthwith notify counsel accordingly.”

We see no inconsistency between the local Rule and Maryland Rule 112.¹ Nothing in the local Rule purports to permit the Clerk in Prince George’s County to ignore the plain mandate of Rule 112 requiring that he reissue such summons “as a matter of course.” That such a reissuance would likely result in another return of the summons endorsed non est does not mean that he can refuse to renew it unless he is provided with another address; indeed, the Rule, in requiring two successive returns of non est as a condition precedent to inhibit the bar of limitations, contemplates that such procedure will act as a double check on the Sheriff’s performance in his initial undertaking to effect service. By directing such automatic reissuance of the summons, it was one plain purpose of Rule 112 to assure that once the suit was filed within the period of limitations, counsel need have no further concern that limitations would run against his client for failure on his part to renew the summons. In this connection, the Rule of court, unlike the common law, or the now repealed statutes, imposes the mandatory responsibility for reissuance upon the Clerk, rather than an optional responsibility upon counsel; and we think counsel should not be called upon to superintend the duties of the Clerk, but on the contrary, in these wholly mechanical circumstances, should be entitled to rely upon the proper performance of the Clerk’s duty. Indeed, in this ease, the record discloses that appellee did not have a better address for appellant than that originally supplied; that she had moved to Pennsylvania in August of 1966; and had the summons been reissued, as automatically required under the Rule, it would have been again returned non est.

The thrust of appellant’s claim is that appellee’s action “was barred by the statute of limitations when, under the Rules of Court, he did not as a matter of course request a reissue in response to the Clerk’s letter of May 17, 1968.” Since the reissuance was not dependent upon counsel’s request therefor, and since the statute of limitations would have remained tolled had the Clerk followed the clear mandate of the law, it would appear to be a plain perversion of the purpose and intent underlying Rule 112 to invoke the bar of limitations upon a litigant solely by reason of the neglect and omission of the Clerk to perform the wholly perfunctory duty compelled by the Rule of reissuing the summons. Cf. Bertonazzi v. Hillman, Adm’x, 241 Md. 361. We think Rule 112 is so structured as to permit us to hold, on these facts, and under these circumstances, that the conditions requisite to achieving a state of dormancy of process were, in effect, met in this case.

Judgment affirmed; appellant to pay costs.

1 . Were there such an inconsistency, the local Rule would yield. Maryland Rule If.