Opinion
No. 4822.
Argued May 3, 1960.
Decided May 31, 1960.
1. A writ never served upon the defendant as required by the provisions of RSA ch. 510 confers no jurisdiction of the court over him and does not constitute the bringing of an action for wrongful death within the requirements of RSA 556:11.
2. The joining of a second defendant to an action for wrongful death is, as to him, the beginning of the suit and may not be permitted after the two-year statute of limitation (RSA 556:11) has expired.
CASE, by plaintiff as administratrix of the estate of George B. Peabody to recover for personal injuries sustained in a motor vehicle accident in Rochester resulting in the death of decedent on July 1, 1955.
An action was commenced against each defendant by a writ dated January 11, 1957. Service was made on Harris Motors, Inc. and that writ was duly entered. Service on the writ against Robert L. O'Leary could not be made and that writ was never entered. A new writ dated July 12, 1957, was served on O'Leary on August 2, 1957, and entered.
On August 20, 1957, O'Leary moved that the action against him be dismissed because barred by the statute of limitations. After hearing, the action was dismissed on February 21, 1958, subject to plaintiff's exceptions. On April 7, 1958, the plaintiff filed a reserved case to which the defendant O'Leary objected as not having been seasonably filed under Rule 57 of the Superior Court, 99 N.H. 617. The reserved case was allowed subject to his exception.
On April 21, 1958, the plaintiff filed a motion for amendment to join O'Leary as a party defendant in the action against Harris Motors, Inc. After hearing, this motion was denied subject to the plaintiff's exception.
All questions of law raised by each party's exceptions were reserved and transferred by Sullivan, J.
Fisher, Parsons Moran (Mr. Moran orally), for the plaintiff.
Burns, Bryant Hinchey (Mr. Hinchey orally), for the defendants.
The writ dated January 11, 1957, brought by the plaintiff against the defendant O'Leary was never served on him as required by the provisions of RSA ch. 510. Thus no jurisdiction was ever acquired over him by this writ. Bissonnette v. Alpine, Inc., 96 N.H. 419. It cannot be considered as constituting the bringing of an action for wrongful death which would satisfy the requirements of RSA 556:11.
A new writ for the same cause of action was brought against this defendant, served on him, and entered in court. However this writ is dated July 12, 1957, and was served on the defendant August 2, 1957. This action was not commenced within two years after the death of the deceased party on July 1, 1955, and was properly dismissed. Poff v. Telephone Co., 72 N.H. 164; Kostoras v. Hines, 80 N.H. 500; Costoras v. Noel, 100 N.H. 81, 82.
By motion made on April 21, 1958, plaintiff sought to join O'Leary as a party defendant in his action against Harris Motors Inc., "when a new defendant is brought in by amendment, the situation as to his rights and liabilities is what it would be if an original action against him were brought at that time. As to him, this is the beginning of the suit." Lewis v. Hines, 81 N.H. 24, 26. At the time this motion to amend was made the cause of action against O'Leary for the wrongful death of plaintiff's intestate had expired as no action had been brought within two years of the date of his death. Therefore the denial of plaintiff's motion to join O'Leary as a party defendant in the action against Harris Motors Inc., was proper. Costoras v. Noel, 101 N.H. 71.
In view of the result reached it is unnecessary to consider defendant's exception.
Judgment for defendant O'Leary.
All concurred.