Ferris v. Wood

CHIPMAN, C.

The trial court granted defendant’s motion to dismiss the action on the ground of unnecessary delay in serving summons. The complaint duly pleaded a former judgment between the same parties, in the same court, as the cause of action. An execution had been taken out, but was returned

nulla tona.

The summons in the present action was issued on the day the complaint was filed, and was served two years and one month thereafter. Plaintiff appeals from the judgment of dismissal.

In support of the motion the affidavit of defendant Wood

[427]

was read, in which he stated that his place of residence was then, and had been for several years, the same as that of plaintiff's attorney, and that they were well acquainted with each other, and had met frequently during the past five years, and that defendant’s place of residence was also well known to plaintiff; that “during the past two years prior to the service of said summons upon affiant, affiant had conversed with said plaintiff about the matters mentioned in the complaint in this action”] that plaintiff at no time informed affiant of the commencement of this action; and that the summons was not placed in the hands of any officer for service until the day it .was served. Defendant also introduced the complaint and summons in the action.

Plaintiff introduced the judgment-roll in the original action against defendant, consisting of the complaint, answer, findings, and judgment; also the execution issued on the judgment and return

nulla bona.

Plaintiff’s attorney was then sworn and testified that a writ of attachment was sued out at the time summons was issued, and one reason why summons had not been served earlier was, that “it was the desire of plaintiff to hold back service and knowledge of suit from defendant to see if it was possible to discover anything on which a writ of attachment would lie.” He further testified: “Shortly after this action was commenced I received a letter from the plaintiff asking me to withhold service of summons until further orders from him, as the defendant had made a proposition to him to compromise the judgment heretofore rendered against him, and plaintiff did not wish to embarrass the settlement by pushing the litigation. After several months plaintiff notified me that the compromise had fallen through, and to proceed with the suit, which I did at once.” He also testified that the suit was brought upon a judgment obtained in that court, no part of which has ever been paid. The testimony of plaintiff’s attorney was not contradicted or denied by defendant, but was corroborated by defendant’s affidavit. This judgment imported absolute verity, and besides it appeared without conflict that no part of it had been paid.