Dowell Co. v. Gagnon

Williams, J.

This action was brought by Dowell Construction Company against Cliff Gagnon and his wife for recovery of money due on an open account. The court granted plaintiff a summary judgment which was reversed in an unpublished decision of this court because there was a genuine unresolved issue of whether the statute of limitations had been tolled by the defendant leaving the state or concealing himself therein. Upon remand, the trial court entered another summary judgment in favor of the plaintiff ruling that the statute of limitations had been tolled by commencement of another action with the same parties and purpose and in the same venue 10 years before. The defendant appeals the judgment; we reverse and remand.

The complaint in the latter action (the one before the court) was not filed within the statutory period and is barred unless a tolling statute, RCW 4.16.170 or RCW 4.16.180, controls. Summerrise v. Stephens, 75 Wn.2d 808, 454 P.2d 224 (1969). There is nothing in either of these statutes or in the common law permitting a cause of action to remain in existence virtually in perpetuity by filing and forgetting a complaint. The purpose of the statute of limitations is to force cases to trial while witnesses are still available and memories are still clear. That purpose would be effectively thwarted if the filing of a complaint in the same venue but under a different filing number 10 years before tolled the statute.

Moreover, we note that the pertinent part of RCW 4.16-.170 reads:

For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first.

" [T]he complaint" is the one filed in the action before the court, not a complaint independently filed. See Fox v. Groff, 16 Wn. App. 893, 895, 559 P.2d 1376 (1977).

The complaint in the case before the court was filed long after the statutory period had expired. Whether the tolling statute applies because of defendant's absence from the state or concealment, the question in the first appeal, is still before the court. Summerrise v. Stephens, supra.

The judgment is reversed and the case remanded for further proceedings.

Corbett, A.C.J., concurs.