Summary
In Horn, this Court specifically pointed out that "[t]he plaintiff was guilty of no act or omission amounting to an abandonment of the cause, and was not chargeable with the neglect of the clerk in not promptly issuing a summons after he had filed his complaint....
Summary of this case from Ward v. Saben Appliance Co.Opinion
4 Div. 884.
October 21, 1920. Rehearing Denied December 18, 1920.
Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.
Frank B. Bricken, of Luverne, and J. J. Mayfield, of Montgomery, for appellant.
This action was barred by the statute of limitations when it was commenced October 10, 1918. Subdivision 5, § 4840. See, also, sections 4853, 5296, 5297. As to when a civil action will lie against a physician, see 131 Ala. 359, 31 So. 548; 167 Ala. 217, 51 So. 937; 169 Ala. 171, 52 So. 932; 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863. This cause should be reversed. 175 Ala. 210, 57 So. 23; 167 Ala. 220, 51 So. 937. The complaint is insufficient. 151 Ala. 333, 44 So. 46, 158 Ala. 129, 48 So. 600; 148 Ala. 81, 42 So. 52, 7 L.R.A. (N.S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; 12 Ala. 567.
Hill, Hill, Whiting Thomas and C. P. McIntyre, all of Montgomery, for appellee.
Each count was sufficient and not subject to the demurrer. 168 Ala. 612, 53 So. 76; 169 Ala. 171, 52 So. 932; 169 Ala. 275, 28 L.R.A. (N.S.) 1106; 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; 175 Ala. 194, 57 So. 23; 171 Ala. 251, 55 So. 170; 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097. On these authorities there was no error in the charges given for the plaintiff. There was conflict in the evidence and the defendant was not entitled to a directed verdict. 144 Ala. 343, 39 So. 74. The plaintiff was a minor, and was barred by the statute of limitations of one year. 140 Ala. 633, 37 So. 295; 181 Ala. 427, 61 So. 62; sections 4840 and 4846, Code 1907. In any event the suit was begun within the year, as the complaint was filed October 10, 1917. 198 Ala. 295, 73 So. 504; 159 Ala. 472, 49 So. 225.
Under the Code of 1896, § 2814, it is provided that the "suing out of a summons is the commencement of a suit." West v. Engle, 101 Ala. 509, 14 So. 333; Ware v. Swann Billups, 79 Ala. 330. The foregoing section was amended, however, by Act of 1903, p. 370, and as amended became section 4853 of the Code of 1907, and provides that the commencement of the suit is the "filing of the complaint, * * * or other statement of plaintiff's cause of action, in the office of the clerk of the circuit court, register in chancery or other ministerial office of courts of like jurisdiction." The complaint in this cause was filed in the office of the circuit clerk within a year after the cause of action arose, and intercepted the statute of limitations, notwithstanding the summons was not issued for more than a year thereafter. Farmers' Oil Co. v. Melton, 159 Ala. 469, 49 So. 225. We must not be understood, however, as holding that this suit of a minor by his next friend would have been barred if not brought within a year after the cause of action arose.
As above noted, the suit was commenced by filing the complaint with the clerk, though of course no order or judgment could have been taken upon same until the defendant was served with process or voluntarily appeared. The cause was placed upon the docket, and at the succeeding term (spring of 1918) was continued. The plaintiff, at the fall term of 1918, while the cause was still pending, procured an order for the issuance of a summons upon the defendant and an alias complaint. This was in no sense an abandonment of the pending or original cause so as to operate as a discontinuance of same, but was merely an effort on the part of the plaintiff to get the cause in shape for the prosecution of same by having the defendant summoned to answer the complaint as originally filed; the alias being intended as a mere duplicate or copy of same. The plaintiff was guilty of no act or omission amounting to an abandonment of the cause, and was not chargeable with the neglect of the clerk in not promptly issuing a summons after he had filed his complaint, and the fact that he obtained an order at the fall term 1918 for a summons and alias complaint indicated a purpose to prosecute his pending cause to a finish, rather than the abandonment of same and the commencement of a new action. Forrester v. Forrester, 39 Ala. 320; Ex parte Humes, 130 Ala. 201, 30 So. 732.
Each count of the complaint sufficiently conforms to rules of pleading in cases of this character as heretofore established and approved by this court, and neither of them was subject to the defendant's demurrer. Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; T. C. I. Co. v. Smith, 171 Ala. 251, 55 So. 170.
The trial court did not err in refusing the general charge, as there was evidence affording the jury a reasonable inference of every material fact set forth and relied upon in each count of the complaint.
There was no error in giving the plaintiff's requested charge, which we designate upon the margin of the record as No. 1. A similar charge was approved by this court in the case of Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863, and said charge was fully warranted under the facts in the case at bar.
There was evidence fully warranting and supporting the verdict of the jury, and under the well-recognized rule established by this court in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, we must decline to disturb the action of the trial court in refusing to grant the defendant's motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.