Gorgen v. County of Nemaha

118 N.W.2d 758 (1962) 174 Neb. 588

William GORGEN, a minor by Clara Prince, his natural mother and next friend, Appellant,
v.
The COUNTY OF NEMAHA, Appellee.

No. 35295.

Supreme Court of Nebraska.

December 28, 1962.

Schrempp & Lathrop, Henry C. Rosenthal, Jr., Omaha, for appellant.

Dwight Griffiths, Auburn, Donald Stanley, County Atty., Peru, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

BOSLAUGH, Justice.

This is an action against the County of Nemaha, Nebraska, for damages alleged to have been caused by a defective bridge. The petition alleged that the plaintiff, William Gorgen, a minor 18 years of age who appears by his next friend, was injured on July 30, 1960, when an automobile in which he was a passenger ran off of a bridge; that the plaintiff's injuries were caused by the negligence of the defendant in failing to provide a suitable bridge, in failing to warn motorists of the existence of the bridge, in failing to provide suitable guard-rails on the bridge, and in setting the bridge at an angle; and that the plaintiff was damaged as a result of his injuries. The trial court sustained a demurrer to the petition and dismissed the action. The plaintiff has appealed to this court.

The action is brought under section 39-834, R.R.S.1943, which requires that such an action be "commenced within thirty days of the time of the injury or damage occurring; * * *." The limitation of the time within which the action must be commenced applies to all persons without regard to any kind of disability. Swaney v. County of Gage, 64 Neb. 627, 90 N.W. 542. Where the record shows that the action was not commenced within the time required, the petition is subject to demurrer. Reliance Trust Co. v. Atherton, 67 Neb. 305, 93 N.W. 150, rehearing denied, 67 Neb. 309, 96 N.W. 218.

In this state a civil action is commenced by filing a petition and causing a summons to be issued thereon. Section 25-201, R.R.S.1943. Section 25-502, R.R.S. 1943, provides: "The plaintiff shall also file with the clerk of the court a praecipe stating the names of the parties to the action with demand that summons issue therefor." Section 25-217, R.R.S.1943, provides in part: "An action shall be deemed commenced, within the meaning of this chapter, as to the defendant, at the date of the summons which is served upon him; * * *." The mere filing of a petition and the issuance of a summons is not the commencement of an action; the summons issued must be served upon the defendant. Reliance Trust Co. v. Atherton, supra. The action is commenced at the date of the summons which is served upon the defendant. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108; Burlingim v. Cooper, 36 Neb. 73, 53 N.W. 1025. Where the defendant enters a voluntary appearance, the action is commenced on the date of the appearance. Hotchkiss v. Aukerman, 65 Neb. 177, 90 N.W. 949; Reliance Trust Co. v. Atherton, supra.

The record shows that the following took place on August 26, 1960. The plaintiff filed a petition, which alleged that the accident occurred on July 30, 1960, and a praecipe as follows:

"PRAECIPE Wm. Gorgen, A Minor By Clara Prince, | His Natural Mother and Next Friend, | DISTRICT COURT, FIRST Plaintiff, | JUDICIAL DISTRICT, IN > vs | AND FOR NEMAHA COUNTY THE COUNTY OF NEMAHA, | Defendant, | Doc Q Page 284 No.7908 TO THE CLERK OF SAID COURT: Please issue Summons in the above entitled cause and deliver same to the Sheriff of said County; John W. Magor - Auburn Frank Clark - Nemaha Adolph Kienker - Johnson Schrempp & Lathrop Attorney for Pltf."

A summons was issued for service upon "John W. Magor—Auburn," "Frank Clark —Nemaha," and "Adolph Kienker—Johnson," and was served personally upon John W. Magor, Frank Clark, and Adolph Kienker.

Magor, Clark, Kienker, and the defendant all filed special appearances which were sustained on October 18, 1960. The plaintiff did not appeal from the orders sustaining the special appearances. On October 11, 1961, approximately a year later, the plaintiff filed a praecipe requesting that an alias summons be issued.

The record in this case shows that the action was not commenced within the time limited by statute. Although the petition was filed within the 30-day period, there was no summons issued for the defendant which was served upon it. The summons which was issued and served on August 26, 1960, was not directed to or served upon the defendant. Magor, Clark, and Kienker were not parties to the action and the service of the summons upon them as individuals accomplished nothing. The trial court acquired no jurisdiction over the defendant by the summons issued and served on August 26, 1960.

The plaintiff argues that a party is not obliged to supervise the preparation of the summons and is not responsible for a dereliction of an officer of the court. The argument is not applicable to the facts in this case. The summons which was issued in this case responded to the praecipe which the plaintiff filed. The difficulty lies in the fact that the praecipe was defective. It was the plaintiff's responsibility to file a praecipe "stating the names of the parties to the action with demand that summons issue therefor." Section 25-502, R.R.S. 1943. The praecipe should have requested that a summons be issued for the defendant, the County of Nemaha, Nebraska.

The demurrer was properly sustained and the action dismissed. It is unnecessary to consider the other ground urged in support of the demurrer.

The judgment of the district court is affirmed.

Affirmed.