Pindell v. Maydwell

46 Ky. 314, 7 B. Mon. 314, 1847 Ky. LEXIS 24

• Court: Court of Appeals of Kentucky
• Decided: June 28, 1847
• Status: Published

Opinion

Judge Simpson

delivered the opinion of the Court.

Samuel Beach having filed an answer which he prayed might be considered a cross bill against his co-defendant, Maydwell, in a suit in chancery pending in the Fayette Circuit Court, in which Beach and Maydwell were both defendants, but having failed to sue out process thereon, the plaintiff in error, some considerable time afterwards, exhibited in his own name, as assignee in bankruptcy, a bill purporting to be an amendment to the cross bill of <®-aach* had a chancery subpoena issued thereon, and exeÜfcfíed QQ'Maydwell. Thereupon Maydwell filed his a'nswer, relying, among other matters of defence, upon the^tatüfelóT limitations.

Whether-he can avail himself of the statute or not, -depends u?pon the time the suit shall be considered as having been commenced. The suing out process has always been held the commencement of an action or suik (7 Monroe, 111.) It has also been held that the service of the notice in ejectment is the commencement of the action, although the suit is not pending until the return of the notice, and the filing of the declaration and notice in Court.

In bringing a suit in chancery, the first step taken by the complainant, is to file his petition or bill, and hence writers on this subject frequently speak in general terms of this act, as the commencement of the suit. But so-far as it relates to the defendant, the suing out process against him is the commencement of the suit; preferring the bill being only preparatory to this being done.

The propriety of the adoption of this principle is illustrated very forcibly by the proceedings in the present case ; no process had been issued on Beach’s cross bill for upwards of three years, Maydwell was not bound to notice it, and no suit was actually pending against him on the cross bill, until process issued thereon in the name of the plaintiff in error, on his bill purporting to be an amendment thereto.

The filing of a bill in ehaneery, without suing out process thereon, will not be regarded as commencing a suit.

Pindell for plaintiff; Sayre for defendant.

When a party attempts, at law, to avoid the application of the statute, by showing that the first writ was sued out in time for this purpose, although the subsequent one was after the time, it has been held that he must show the first writ not only to have been issued, but to have been returned: Harris vs Woolford, (6 Term Rep., 617.) As the Chancellor applies the statute, in analogy to its application by a Court of law, it follows that where a party files a bill in chancery and neglects to take out process, the statute still continues to run against him, and he cannot avoid its effect by showing that he lodged his bill in the Clerk’s office, or even filed it in open Court, before the time had expired. It is obvious that, although it might remain in that condition length of time, there would be no suit pending, the defendant, and if when process issues, at any subsequent period, no matter how distant, it ered as relating back to the time when the bill was filed, such a doctrine would have the effect of encouraging iigence on the one hand, and of defeating on roe,m tlier, the object of the statute, which was intended to obvíate any injustice that might arise from the absence of testimony, supposed to have been lost, or forgotten through the operation of time.

As the statute of limitations must have its effect in this case, and as it is decisive of the fate of the complainant’s claim to relief, it is unnecessary to notice the other ques-. tions presented.

The Circuit Court having dismissed the complainant’s bill, its decree is affirmed.