Jencks v. Phelps

The commencement of an action is determined, by the service of process, and not by the signing or issuing of the writ.

This was an action against the defendant, as sheriff of the county of Hartford, for the escape of Henry Osborn from prison, on the 21st of June, 1820; he having been committed on an execution in favour of the plaintiff. The process was a summons, dated the 21st of June, 1820. The cause was tried at Hartford, February term, 1822, before Peters, J. The plaintiff’s writ, after it was completed, was delivered, by the justice who signed it, to the plaintiff, who put it into the hands of an officer for service, directing him not to serve it until further ordered. On the succeeding night, the officer, by the plaintiff’s direction, served the writ on the defendant; and whether Osborn was, at that time, without the limits of the gaol-yard, was the principal question of fact on the trial. The defendant claimed, and prayed the judge to instruct the jury, that even if they should find this fact in the plaintiff’s favour; yet the action was commenced before that time, and, of course, the plaintiff could not recover. The judge instructed the jury, that if they should find, that Osborn was, at the time of the service of the writ, without the limits of the gaol-yard, it would he their duty to return a verdict for the plaintiff to recover of the defendant the amount of the execution, officer’s fees, and money expended for the prisoner’s support, with interest. The jury returned a verdict for the plaintiff accordingly; and the defendant moved for a new trial, on the ground of a misdirection. contended, 1. That an action cannot be legally commenced, until the cause of action is perfected. [This point was conceded, by the opposing counsel.] 2. That the issuing of the writ is the commencement of the action. An action is a course of proceeding, in a court of justice, to enforce a right. The commencement of an action is the first step in that proceeding. This, in Connecticut, whatever it may be elsewhere, is the issuing of the writ. 2 Swift's Syst. 187. The writ, even in England, where the declaration does not go with it, is said to be “the beginning or foundation of the suit.” 3 Bla. Comm. 272. It is the office of the writ, to call upon the defendant, in the name of the sovereign power, to answer to the plaintiff’s complaint. This is, in fact, the first step; and from the nature of the proceeding, it must be so. It is, also, an indispensible step; one, which is essential to the existence of the action. If the issuing of the writ is not the commencement of the process, what is the commencement? Is it the service? This is only notice of something antecedently done, viz. of the claim made by the plaintiff in his writ. Besides, if the commencement of the action is to be determined by the service, at what point in the service shall it be fixed? Shall it be, when estate is attached; when a copy is left; or, when the writ is returned? If the service alone were to determine the commencement of the suit, the date of the writ would be immaterial; but this is not so. If a writ is dated before the cause of action accrued, though not served till afterwards, it is a good ground of demurrer. In the state of New-York, it is settled law, that the issuing of the writ is the commencement of the action. Lowrey v. Lawrence, 1 Caines 69. 71. Cheetham v. Lewis, 3 Johns. Rep. 42. Bird & al. v. Caritat, 2 Johns. Rep. 342. 346. What is the commencement of the suit, depends on “the general rule and course of the court.” Foster v. Bonner, Cowp. 454. 456. In the Common Pleas, it is the original writ. In the King’s Bench, it may be either the suing out of the latitat, or the exhibiting of the bill, at the election of the plaintiff. Bul. N. P. 151. A latitat will be held to be a good commencement of the suit, to avoid a plea of the statute of limitations, or a tender made after suing it out; but, in general, the exhibiting of the bill is considered as the commencement of the suit, and the latitat merely a process to bring the defendant into court, which may be sued out before the cause of action. 1 Tidd's Pract. 292, 3. In the state of New-York, the delivery of a writ to the officer, or some act tantamount, with intent to have it served, is considered as the commencement of the suit. Bronson & al. v. Earl, 17 Johns. Rep. 63. Burdick v. Green, 18 Johns. Rep. 14. 20. There, however, as in the English King's Bench, the issuing of the writ will be regarded as the commencement of the suit for the purpose of saving a case from the statute of limitations. What has been “the general rule and course of the court” in Connecticut? It has been, invariably, and for every purpose, to consider the service of process upon the defendant as the commencement of the action. This practice was sanctioned, by the superior court, in Clark v. Helms, 1 Root 486. and by the supreme court of errors, in Holdridge v. Wells, June, 1801. (a) In the latter case, the sole question was, whether the action was commenced, by the issuing of the writ; and it was decided in the negative. In perfect consistency with this general rule, it has been the constant practice to permit the alteration of a writ, at pleasure, after it is signed and issued by the magistrate, until it is served; and the correctness of such practice was recognized, by this court, in Parsons v. Ely and Parsons, 2 Conn. Rep. 377. Blank writs are frequently signed and issued; which are afterwards filled up and used, as occasion requires. But if the issuing of the writ were the commencement of the action, it could not be afterwards altered, either before or after service. This is, also, a convenient practice; and is productive of no injurious consequences.