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Weinberger v. Rall

June 1, 1973

WEINBERGER, APPELLANT,
v.
RALL, RESPONDENT



Appeal from Circuit Court, Washington County. Albert R. Musick, Judge.

Robert P. Bell, Beaverton, argued the cause for appellant. With him on the brief were Myatt, Bolliger & Hampton, P.C., Beaverton.

David G. Frost, Hillsboro, argued the cause and filed a brief for respondent.

In Banc. Bryson, J.

Bryson

In this action at law to recover damages for personal injuries suffered by plaintiff in an automobile collision, defendant pleaded the statute of limitations as an affirmative defense. After an evidentiary hearing on that defense, the court held that the action had not been commenced within the two-year period of limitations for that type of action (ORS 12.110 (1)) and dismissed the complaint. Plaintiff appeals.

The accident occurred on September 19, 1969, in Washington County, Oregon. At that time, and while in Oregon, defendant was a resident of Clackamas County, and was employed in Washington County. On December 18, 1970, defendant moved to Snohomish County, Washington. On September 16, 1971, plaintiff filed her complaint in the circuit court of Washington county and delivered a summons and complaint to the sheriff of that county for service on defendant. On September 28, 1971, the sheriff of Washington county returned the summons unserved because he was unable

to locate defendant within the county. Plaintiff forwarded the summons and complaint to the sheriff of Snohomish County, Washington, who obtained personal service on defendant on October 26, 1971. Plaintiff took an order of nonsuit as to defendant General Telephone Company of the Northwest, Inc.

Plaintiff's sole assignment of error is:

"The Court below erred by construing O.R.S. 12.030 to require delivery of summons and complaint to the Sheriff of the county of nonresident defendant's last residence in Oregon. Such a construction is unreasonable and if so construed the statute would deny the constitutional safeguards of due process and equal protection."

ORS 12.030 provides:

"12.030 Attempt to begin action. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this chapter, when the complaint is filed, and the summons delivered, with the intent that it be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; * * *. But such an attempt shall be followed by the first publication of the summons, or the service thereof, within sixty days."

Plaintiff argues that to comply with this statute would force him to perform an arbitrary, useless act (delivery of the summons to the sheriff of Clackamas county, where defendant last resided) in order to obtain the 60-day tolling of the statute of limitations. According to plaintiff, this would be a "mere gesture, in no way calculated to actually notify the non-resident defendant * ...


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