State Bank v. Cason, 10 Ark. 479 (1850)

Jan. 1850 · Arkansas Supreme Court

10 Ark. 479

State Bank vs. Cason et al.

A suit is commenced by the filing of the declaration and the voluntary appearance of defendant, or the issuance of the writ — filing the declaration alone is not the commencement of an action.

It is no answer to a plea of the statute of limitations that, before the cause of action was barred, plaintiff filed his declaration, and instructed the clerk to issue the writ, but the clerk did not do so until the limitation expired.

Where there are several issues, a finding upon either of which for defendant would discharge him, the jury may find a general verdict, and are not bound to find upon each issue separately.

Writ of Error to Lawrence Circuit Court.

The Bank of the State of Arkansas brought an action of debt, by petition, against Sebron Cason and Gabriel Frost, to the April term, 1847, of the Lawrence Circuit Court, upon a promissory note for $118, dated October 28th, 1843, and payable-twelve months after its date. No endorsement of the time of filing the petition is copied in the transcript.

At the October term, 1848, this order appears of record: “On motion of plaintiff, this cause is continued by the Court; and ordered by the Court that a writ of summons issue on the petition filed herein,” &c.

On the 1st February, 1849, the writ was issued, returnable to the following May term. At that term, the defendants appeared and filed four pleas:

1st. Nil debet:

-2d. That the cause of action did not accrue to plaintiff at any time within three years next before the commencement of the suit:

3d. Payment:

4th. General plea of fraud.

To the 1st plea, plaintiff took issue. To the 2d, she filed three replications, as follows, in substance:

1st. That, in the latter part of September, 1847, and within three years after the cause of action accrued, plaintiff caused her petition in debt, with the note sued on, to be forwarded to the clerk of the Circuit Court of Lawrence county, with instructions to him to hie the same, and issue a writ thereon against defendants, directed and returnable according to law, which petition, &c., came to the hands of the said clerk on the 22d October, 1847, and were, by him, on the same day, filed in his office, endorsed filed, &c.: and that, on the 1st February, 1849, said clerk issued a summons upon said petition, directed and return - able according to law against said defendants, which subsequently came to the hands of the sheriff of said county to be executed and returnejd. according to law: — Concluding with a verification. u, jb rif/, ,. .

2d. That, oh"the 22d October, 1847, plaintiff caused her said action on said, prp,misspry/n.ole¡ to be commenced against said defendants by fifing, in the office of the clerk of said Circuit Courts her petition in debt; and then (on said 2'2d October, 1847) and there requesting.and requiring the said clerk to issue thereon, under the seal of said Court, a writ of summons against said defendants, and deliver, or cause it to be delivered, to the sheriff of said county to be executed: — Concluding with a verification.

3d. That plaintiff’s cause of action did accrue, &c., within three years next before the commencement of the suit, &c.

To defendants’ third plea, plaintiff took issue, and demurred to the fourth.

Defendants demurred to plaintiff’s first and second replications to their second plea. Both demurrers were sustained by the Court. The issues were submitted to a jury, and general verdict for defendants.

By bills of exceptions taken by plaintiff, it appears that defendant asked the following instructions to the jury, which the Court gave, and plaintiff excepted :

“1st. That, unless the plaintiff in this caso proves to you that she filed her petition, and issued a writ thereon within three years next after the canse of action accrued to her, on the note sued upon, they must find for the defendants :

“ 2d. That the cause of action accrued on the day the note became due.”

Plaintiff asked the following instruction, which the Court refused, and she excepted:

“ The jury must find separately on each one of the issues made up in the case between the parties, upon the testimony.”

But the Court instructed the jury as follows, to which plaintiff excepted:

“ The jury may find a special verdict upon all the issues in this case, but they may find a general verdict if they think proper to do so.”

The case was tried in the Courj ijtlon. Wil-mam C. Scott, Judge.

Carroll, for the plaintiff

Byers & Patterson, contra.

The llistamtiftinr^fven were all applicable to the issue on the plea of limitations, the burden of proof being on the plaintiff. (2 Eng. 441.) The jury was not bound to find a verdict on each issue separately; a verdict on either issue for the defendant was sufficient. As to the question arising upon the replications to the plea of the statute of limitations, see State Bank vs. Bates, 4 Eng.

Mr. Chief Justice Johnson

delivered the opinion of the Court.

The main question involved in this case is, whether the, Circuit Court decided correctly or not in sustaining the demurrer of the defendant to the plaintiff’s first and second replications interposed to his plea of the statute of limitations. It may be important, as a preliminary matter, to lay down what it is that constitutes the commencement of an action in the Circuit Court. The 2d sec., ch. 126, Dig., provides that “suit's at law may be commenced in any of the Circuit Courts of this State by filing,' in the office of the clerk of such Court, a declaration, petition or statement, in writing, setting forth the plaintiff’s cause of action and by the voluntary appearance of the defendant, or by filing such declaration, petition or statement, in such office, and suing out thereon a writ of summons or capias ad respondendum against the person or of attachment against the property of the defendant.” It is clear and indisputable, under this provision of the statute, that, unless the defendant makes his appearance voluntarily, the issuance of the writ is a necessary element in the institution of the suit. It is not the mere act of filing the declaration, petition, or statement, in writing, but the joint act of filing the same and the issuance of the writ, that constitutes the commencement Sf the suit.

The instrument sued upon fell due on the 28th October, A.D. 1844; the petition was brought to the April term, 1847, and the writ issued on the 1st February, 1849. The two replications are substantially the same, and neither contains such matter as amounts to an answer to the plea. The replications appear to be predicated upon the idea that the actual issuance of the writ may be dispensed with within the limitation, and that an instruction to the clerk to that effect would be a compliance with the law. The facts set up cannot have the effect to take the case out of the operation of the act, as it is not pretended that the Bank actually commenced her suit before the expiration of three years from the time the cause of action accrued.

The Court decided correctly in giving the instructions asked by the defendant below, and also in refusing those claimed by the plaintiff. The defendant first asked the Court to instruct the jury that, unless the plaintiff had proved that she filed her petition and issued her writ thereon within three years next after the cause of action accrued, they must find for the defendants; and secondly, that the cause of action did accrue on the day the note became due. The first has been virtually sustained by the definition already given of the commencement of a suit, and the second is self-evident, and consequently needs no argument or illustration.

The instruction prayed by the plaintiff, and refused by the Court, is, that the jury must find separately on each of the issues made between the parties upon the testimony given in the case. This, most clearly, should not have been given. It may be true that the jury might have found separately; yet, it by no means follows that they were compellable to do so. If they were satisfied, from the evidence, that the defendant had sustained either of the issues, they were undoubtedly entitled to a verdict, as each plea was an answer to the whole action.

We are satisfied, therefore, that there is no error in the judgment and proceedings of the Circuit Court. The judgment is, therefore, in all things, affirmed.