Proska v. McCormick

9 N.W. 289, 56 Iowa 318

• Court: Supreme Court of Iowa
• Decided: June 14, 1881
• Status: Published

Opinion

Rothrook, J.

The sole question presented by this appeal is, was the suit begun by the first of October, 1880. '

l. action: time oí commencement: service of notice-Counsel for appellant relies upon Code, section 2532, which is as follows: “The delivery of the original notice to the sheriff of the proper county, with intent that it be .. .. .. .... served immediately, which intent shall be pre- •' sumed, unless the contrary appears, or the actual service of the notice by another person, is a commencement of the action.”

This section of the statute is found in the chapter on the limitation of actions, and in Parkyn v. Travis, 50 Iowa, 436, we held tiiat the time thus fixed as the commencémeíit of an action had reference merely to the rights of the parties under the statute of limitations, and that section 2599 contains the general provision as to what is the commencement of an action. That section provides that “actions shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorney, etc.” . It appears to us that the ruling in that case is conclusive of the question presented in this, and that the action was not commenced within the time named in the contract. • . '

Counsel further relies upon Pitkin v. Boyd, 4 G. Greene, 255; Nuckols v. Mitchell, Id., 432; and Elliott v. Stevens & Co., 10 Iowa, 418. These were all attachment suits, and the Writs of. attachment were levied before, or simultaneously with, the service of the original notice. It was held that the writs should not be dissolved, because the attachments were not prematurely levied, under section 1846 of. the Code of 1851, which provided for an attachment at the commencement of the action. The question as to what was the commencement of a purely pei’sonal action was not presented in those cases, nor does it appear that any statute like section 2599 of the Code was under consideration. In attachment proceedings, the filing of the petition authorizes the issuance of the writ. It does not depend upon the service of the original notice, and it may well be said that where the petition has been filed the writ issues at the commencement of the action.

We think this action was not commenced by October 1, 1880, and that the time thus fixed in the contract was a stipulation as to what should be conclusive evidence that its conditions had been pex’formed.

Affirmed.