McMullin v. Beck

Boyce, J.,

delivering the opinion of the court:

We recognize that in this court the use of the praecipe prevails. The office and effect of the praecipe in this court is not before us, and we express no opinion in relation thereto.

The question now before us is whether a praecipe filed before a justice of the peace commanding that a summons or attachment issue is the commencement of an action such as will arrest the operation of the act of limitations.

The justice’s court is a court of special and limited jurisdiction. It is without terms or rules and we know of no practice prevailing in a justice’s court for the use of the praecipe in bringing an action.

The statute giving jurisdiction to justices of the peace in civil actions provides for two kinds of process; one is by summons and the other by attachment. Whether a person desiring to bring an action before a justice shall demand a summons or attachment orally or in writing, we think the action is not begun until the process is actually issued by the justice. It is not the order for the summons or attachment, but the issuance thereof, in a justice’s court, that operates in arresting the act of limitations. In this case, the summons not having issued until the second day of June, 1910, more than three years from the time the cause of action accrued, to wit, twenty-fourth day of May, 1910, the act of limitations had run before the action was brought. And the act of limitations having been pleaded, the plaintiff is not entitled to recover in this action, and the request of the defendant for binding instructions in favor of the defendant should be granted.

Gentlemen of the jury, you are directed to return a verdict for the defendant.

Verdict for defendant.