Hughes v. Olheiser Masonry, et. al.,
2019 ND 273. Filed 11-20-19.
In this personal injury action, the Supreme Court stated delivery
is not accomplished at the time of mailing the summons and
complaint to the Sheriff ’s Department under N.D.C.C. § 28-01-
38, for purposes of service of the process on a defendant. The Court
stated an attempt to commence an action is not the equivalent to
commencement, when the summons is not delivered to the Sheriff
within the statute of limitations. In this case, the accident occurred
on May 24, 2012. The plaintiff mailed his complaint and summons to
the Sheriff ’s Department on May 22, 2018, (the same day he filed a
complaint in court), requesting the Sheriff to serve the documents on
the defendants. However, the Sheriff ’s Department did not receive
the documents until May 31, 2018. The defendants were served
by the Sheriff on June 1 and 2, 2018. The district court dismissed
the action against the defendants because it was not commenced
against them until after the statute of limitations expired because the
Sheriff ’s Department did not receive the summons until May 31,
2018, approximately one week after the statute of limitations expired.
On appeal, the plaintiff argued the mailing of the summons
and complaint to the Sheriff should be treated as delivery under
N.D.C.C. § 28-01-38, which provides an exception to the statute
of limitations. The Supreme Court disagreed. While N.D.C.C. §
28-01-38 provides that the delivery of a summons to a Sheriff, with
the intent to promptly serve the defendant, commences an action, the
summons has to physically reach the possession of the Sheriff within
the statute of limitations. If it does, and even if the defendant is not
served with the summons until after the statute of limitations expires,
service is still considered to have been made within the statute of
limitations, and the district court acquires personal jurisdiction. This
is because actual delivery of the summons to the Sheriff, within the
statute of limitations period, with the intent that it be promptly
served upon the defendant, is considered commencement of the
action. That commencement would, therefore, be within the statute
of limitations because the Sheriff has the summons within the statute
of limitations period.
The Supreme Court upheld the dismissal of this action by the district
court, however, delivery of the summons to the Sheriff for service,
after the expiration of the statute of limitations, does not save the
action. The Court held that to qualify as an attempt under N.D.C.C.
§ 28-01-38, the summons must be delivered and actually received by
the Sheriff or other officer within the statute of limitations. Even if
the summons is not actually served upon the defendant until after the
statute of limitations expires, the suit is deemed timely commenced
as the Sheriff received it for service within the limitations period.
State v. G.C.H.,
2019 ND 256. Filed 10-29-19.
In this criminal action, the Supreme Court refused to answer a
question of law certified by a North Dakota district court because
answering the question would not be dispositive of the case.
State v. Grzadzieleski,
2019 ND 254. Filed 10-29-19.
In a criminal DUI case, the Supreme Court held that the State may
not appeal from an in limine Order excluding evidence.
Huerd v. General Motors, LLC,
2019 ND 249. Filed 10-29-19.
In this case, the plaintiff appealed the district court’s judgment
dismissing her complaint of a defective motor vehicle. The Supreme
Court stated an action brought in small claims court is subject to
the doctrine of res judicata. A small claims court’s judgment cannot
be appealed to the district court. Because a small claims court
judgment is considered a valid final judgment for a full faith and
credit purposes, and because a small claims court judgment cannot
be appealed to a district court, an action on the same claim in district
court, apparently brought after the small claims court action was
dismissed, was properly dismissed by the district court because res
judicata barred the plaintiff ’s subsequent action in district court on
the same claim.
Call for CLE Speakers
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Contact Carrie Molander at [email protected].
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