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Handy v. Reed12/24/2003
ed was never served with process in Handy I.
K.S.A. 60-203(a)(1) allows the time an action is commenced to be the date the petition is filed "if service of process is obtained." (Emphasis added.) In order for a subsequent action to relate back to the commencement of a prior action, K.S.A. 60-518 requires the prior action must be "commenced within due time."
(Emphasis added.)
These statutory requirements have been the subject of several decisions by our Kansas courts. In Dunn v. City of Emporia, 7 Kan. App. 2d 445, Syl. 6, 643 P.2d 1137, rev. denied 231 Kan. 799 (1982), it was held:
"(a) A previous identical action against the city was not 'commenced within due time' under K.S.A. 60-518, where service was made upon the city attorney and not upon the mayor or clerk as required by K.S.A. 60-304(d); (b) such service on the city attorney was void, not merely voidable; and (c) the provisions of K.S.A. 60-518 being inapplicable to extend the statute of limitations, the action of the trial court in dismissing this cause was proper."
The identical rule was applied in Newell v. Brollier, 239 Kan. 587, 589, 722 P.2d 528 (1986), where it was said: "K.S.A. 60-518 is inapplicable herein as the original action was not 'commenced within due time.'" See Elliott v. White, O'Conner & Werner, P.A., 750 F. Supp. 451 (D. Kan. 1990). For an excellent discussion of this precise question, see Smith, Is Your Lawsuit Properly Commenced?, 21 K.T.L.A.J. 19 (Sept. 1997).
We hold the mere filing of the petition and dismissal of the action without ever serving the defendant does not allow the case to be deemed to have been commenced under K.S.A. 60-203(a) to allow the provisions of K.S.A. 60-518 to operate to save Handy's subsequent action. Thus, we hold that Handy II was commenced on July 3, 2001, not September 5, 2000.
It is only if the trial court's order of January 3, 2001, in Handy I would be deemed to have been legally sufficient to invoke the savings provisions of K.S.A. 60-518 that Handy II could be deemed to have been commenced on September 5, 2000.
We recognize Dr. Reed's argument that because he had never been served in Handy I at the time of the dismissal that K.S.A. 60-241(a)(1) rather than (a)(2) applies and thus the dismissal would be automatic, preventing the trial court from having the power to set terms and conditions upon which such dismissal can be achieved. While such an argument may be correct, the dismissal in our case was not voluntary by the plaintiff and involved a court order. We reach the same result based on the application of either 60-241(a)(1) or (a)(2) and since a court order was involved here, we will consider whether the trial judge legally allowed the savings clause of K.S.A. 60-518 to be applied to a case that had never been legally "commenced" when the January 3, 2001, order in Handy I was entered.
It is fundamental to our system of government that the legislature makes our laws dealing with periods of limitations and the judiciary interprets and enforces such laws. In KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 674-77, 941 P.2d 1321 (1997), the authority of the legislature regarding adoption of periods of limitations was discussed and acknowledged. The KPERS opinion quotes from Harding v. KC Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), which in turn relied on Chase Securities Corp. v. Donaldson, 325 U.S. 304, 89 L.Ed. 1628, 65 S.Ct. 1137, reh. denied 325 U.S. 896 (1945), and teaches us that "' he Court further stated statutes of limitations . . . are creatures of the legislature and not the judiciary, expressing public policy on the right to litigate. The shelte
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