Smith v. Day , 39 Or. 531 ( 1901 )

Mr. Justice Wolverton

delivered the opinion.

The purpose of this action is to recover damages for an alleged joint tort committed on the tenth day of December, 1895, by the defendants J. G. and I. N. Day and The Dalles, Portland & Astoria Navigation Company at the cascade locks in Wasco County. The navigation company is a domestic corporation, having its principal place of business at the City of The Dalles, in said county, while the defendants J. G. and I. N. Day are copartners, and claim to be citizens and inhabitants of the State of California. The complaint was filed March 30,1896, and on the next day an attempt' was made to serve the summons upon the corporation by delivery of a copy thereof to J. N. Harney, its agent in Multnomah County, where the action was instituted, which was quashed October 20 following, on motion of said defendant appearing specially for that purpose. On April 10, 1896, the cause was removed into the federal court on the petition of J. G. and I. N. Day, and on January 3, 1898, an alias summons was delivered to the sheriff of Wasco County, and by him served upon said corporation, which filed a demurrer to the complaint, assigning, among other grounds therefor, that the action was not commenced within two years from the time of the plaintiff’s alleged injury. The demurrer having been sustained, judgment was entered dismissing the action, and the plaintiff appeals.

1. This case may be disposed of upon the single question presented by the demurrer. An action is deemed commenced as to each defendant when the complaint is filed and the summons served upon him or on a codefendant who is a joint maker or otherwise united in'interest with him; and an attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of the statute'of limitations, when the complaint is filed, and the summons delivered with the intent that it be actually served to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided: Hill’s Ann. Laws, §§ 14, 15. It may be conceded for the purposes of this case that the defendants are jointly liable ex delicto to the plaintiff, but, while so amenable, they are also severally liable, so that a several as well as a joint action might have been instituted in the first instance. The record shows that on April 7, 1896, the court made an order removing the cause to the federal court upon the application of the Day firm, concerning the effect of which the parties disagree ; the defendant claiming that the entire cause was thereby transferred, while the plaintiff urges that the order was not adequate to effectuate a removal under the conditions prevailing, but that, if it be deemed effective at all, it merely operated to remove the cause as to the Days, leaving it pending in the state court as to the corporation. The case was not susceptible of a removal as a separable controversy without the consent of the plaintiff. He had his election to sue the defendants either jointly or severally, and, having adopted the joint action, he had the right to have it continued in that form if he so desired, but he could consent to a.severance. It was held in Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co. 80 Fed. 767 (26 C. C. A. 146), that the defendant in error, by not objecting to the removal nor interposing a motion to remand and by proceeding to trial without protest and taking a separate judgment against the guarantee company, consented to the severance of the joint into several actions ; one remaining in the state court, while as to the other the federal court very properly assumed jurisdiction on the ground of diverse citizenship. It is shown by affidavit in the case at bar that the cause was tried out in the federal court, and a verdict rendered and judgment given against the plaintiff, subsequently to January 24, 1898, and that no order was ever made and entered remanding it to the state court. ' While the competency of this affidavit as a factor in the consideration of the demurrer may be questioned, yet we are bound to assume from the very fact that the removal was had, and the cause has remained so long in the federal court, that it was either regularly made, which would carry the entire cause to that court (Barney v. Lathan, 103 U. S. 205; Connell v. Smiley, 156 U. S. 335, 15 Sup. Ct. 353 ; Rich v. Gross, 29 Neb. 337, 45 N. W. 468 ; Blessing v. Edmonson, 49 Tex. 334), or that it was made as to the defendants J. G. and I. N. Day with the consent of the plaintiff, who thereby acquiesced in the severance, and thus conferred the requisite jurisdiction upon the federal court.

2. Taking the hypothesis most favorable to the plaintiff, — that the severance left the cause pending in the state court for further proceedings as it concerned the corporation, — then it must be considered as an action begun against said corporation severally, and not jointly with the Days, as the severance took place before it was served with summons. The first summons delivered was quashed, and thereby rendered futile for any purpose. The summons served was not delivered to the sheriff until January 3, 1898, more than two years after the alleged infliction of the personal injury complained of; hence the action was barred by the statute of limitations : Hill’s Ann. Laws, § 8, subd. 1.

It is questioned whether it was' proper to consider in connection with the complaint the return of the officer upon the summons for the purpose of ascertaining whether the statute had run, but we can see no impropriety in the method adopted. The court has but to look to the files to see when the complaint was filed, which is one step in the process of commencing an action ; then to the summons and the sheriff’s indorsement, to see when it was delivered to him and served, which shows the necessary steps requisite to a proper commencement; and, counting from that time, it may be determined whether it is within the limitations prescribed by the statute.

3. It is insisted, however, that the statutory period within which an action maybe brought for injury to the person is six years, instead of two, and this contention is based upon the theory that the law is now the same as it stood prior to 1870. In 1870 the legislature enacted, by section 9 of an act to amend an act entitled “An act to provide a Code of Civil Procedure, approved October 11, 1862”: “That subdivision 5, section 6 of chapter I of the Code of Civil Procedure be hereby repealed, and that section 8 of said chapter be amended to read as follows: ‘Section 8. Within two years — 1. An action for libel, slander, assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not herein especially enumerated.’ ” Subdivision 5 of section 6 was in the identical language of the latter clause of subdivision 1, section 8, as amended, reading from the words “false imprisonment,” except that the word “especially” is interpolated. The argument is that the act is not effective to the purpose of amending section 6, because the section as amended was not set out entire ; hence that it left the six, yeai's limitation in full force and effect. This position overlooks the fact that section 8 was amended by setting out the entire section, and, as thus amended, it contains a clause in direct and irreconcilable conflict with subdivision 5 of section 6 as it originally stood. Being the later act, it must be held under the settled law of this state to have repealed subdivision 5 by implication, the attempt at a direct amendment of section 6 being ineffectual for the purpose : Fleischner v. Chadwick, 5 Or. 152; Grant County v. Sels, 5 Or. 243 ; Hurst v. Hawn, 5 Or. 275; Little v. Cogswell, 20 Or. 345 (25 Pac. 727); State v. Rogers, 22 Or. 348 (30 Pac. 74); Strickland v. Geide, 31 Or. 373 (40 Pac. 982); Continental Ins. Co. v. Riggen, 31 Or. 336 (48 Pac. 476); Ex parte Ferdon, 35 Or. 171 (57 Pac. 376); Ladd v. Gambell, 35 Or. 393 (59 Pac. 113). We are aware that Mayer v. Cahalin, 5 Sawy. 355 (Fed. Cas. No. 9340), is opposed to this view, but the doctrine there enunciated has never had the sanction of this court. These considerations affirm the judgment of the court below, and it is so ordered.

Affirmed.

Mr. Edw. B. Watson, for appellant. Mr. F. P. Mays, for respondent Navigation Company.