This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Under the statutes of limitation as ordinarily worded, actions can be brought only within certain specified periods. From this phraseology, it follows that the statute of limitations ceases to run against a given cause of action when suit is brought thereon,1 even if final judgment is not rendered for a considerable period of time thereafter.2 If error or appeal is prosecuted from the judgment of the trial court, limitations does not run during the pendency of such proceedings in error or appeal if the plaintiff is unable during such time to enforce the judgment rendered by the trial court.3 If, however, he can proceed unless a supersedeas bond is given limitations runs during an appeal if such bond is not given.4 The general rule that pendency of an action prevents limitations from running, may, of course, be modified by statute. Thus under a statute providing that if execution is not issued for one year on a judgment secured by the obligee on such bond, such judgment debtors as were sureties shall be released, bringing a suit " for discovery to enforce " such bond, is not a substitute for issuing execution and does not prevent limitations from running.5 In applying the general principle that bringing suit stops the running of the statute of limitations the question generally presented, and under a variety of forms, is at what time a suit can be properly said, within the meaning of this rule, to be commenced. This is, of course, primarily a question of procedure and as such is notfor discussion here. Some illustrative examples may, however, be given. Filing a bill,6 or causing summons to issue thereon,7 may be sufficient without actual service, though it is usually provided that there must be a bona fide and diligent attempt to serve such summons. If the summons is irregular but is not a nullity limitations stops when it issues,8 even though it is set aside on direct attack. Issuing a summons signed in blank, is not a commencement of an action where such process is a nullity.9 If no summons issues but defendant voluntarily enters his appearance,10 as by filing a demurrer,11 limitations stops when such appearance is entered. So in a suit by the holder of the mortgage, against the holder of the legal title, intervention by the maker of the note to have the amount due thereon determined stops the running of the statute.12 To suspend the running of the statute it is not necessary that the creditor should be the plaintiff in the action. If he is made a party to the action, and sets up his claim therein in a proper manner, whether by formal pleading or not, the statute stops running. Thus filing a complaint against an insolvent corporation and showing claims,13 or presenting claims and commencing an action to sequester the property of the corporation,14 or presenting a judgment to the probate court for classification,15 or filing a foreclosure suit in which a deficiency judgment is asked against defendants who are personally liable on the mortgage notes,16 each stop the running of the statute. However, the institution of a creditor's suit does not stop limitations from running against the claims of a creditor not made a party thereto.17 Limitations is generally held to stop running against a counterclaim when the suit is commenced in which such counterclaim is pleaded,18 though some courts limit this rule to the use of such set-off as a defense solely.19 Some apply the rule even where the set-off is used as a basis for affirmative relief,20 and some hold that limitations runs against a set-off until it is set up in a cross-petition.21 Where suit cannot be brought against a state, or can be brought on in a specified manner, and the state has provided for a method of presenting claims, such presentation stops limitations.22 Thus a claim against the United States, presented to the treasury before the end of the period of limitations, and transmitted to the Court of Claims after such period, is not barred by limitations.23 If the plaintiff's bill or complaint is filed before the period of limitations has expired, and an amendment thereto is filed after the period of limitations has expired, the question arises whether the amendment dates back to the original pleading for the purpose of the statute of limitations. This depends on whether the amendment sets up the same facts and makes out the same cause of action as the original pleading or not. If it does it dates back to the original pleading,24 even if it gives a more accurate description of the written instrument on which the action is based,25 or seeks different relief.26 Thus if a mortgagee brings an action at law against a grantee who has assumed a mortgage debt and fails because in that jurisdiction, such relief is held to be equitable, he may amend even after limitations has run and seek subrogation,27 such liberty of amendment being otherwise proper. So a suit to foreclose a mortgage has been held to stop limitations on a note secured thereby,28 and if a complaint is filed before limitations has run, based on a note, an amendment filed after limitations has run which sets up a mortgage securing such note, dates back to the original complaint.29 An amendment to a suit on a note whereby the holder is substituted for the payee has been held not to be a new cause of action within the application of the statute of limitations.30 An amendment changing the theory of defendant's liability from individual liability to liability as an individual doing business under a partnership name does not set up a new cause of action.31 An amendment which sets up a new cause of action does not date back to the time of filing the original pleading for the purposes of limitations.32 Thus if the original pleading filed before limitations has run sets up a cause of action based on an express contract to furnish water sufficient to protect property from fire, an amendment filed after limitations has run which abandons the express contract and sets up facts to show a legal duty to furnish such water is filed too late.33 In an action brought upon a contract after the court held that the contract was within the statute of frauds an amendment was filed to enable the plaintiff to recover in assumpsit. Such amendment was held not to relate back to the first pleading.34 So if the original pleading alleges a loan to defendant, an amendment which abandons the theory of a loan and alleges that money was obtained by defendant's agent through forgery, and that such money came to defendant's hands, does not date back to the time of filing the original pleading.35 So if the new promise made after limitations has run is looked on as the cause of action, a pleading declaring on the original cause of action does not stop limitations from running against the new promise, and an amendment filed after limitations has run is filed too late.36
32 Campbell v. Campbell. 133 Cal. 33; 65 Pac. 134; Phoenix Lumber Co. v. Water Co., 94 Tex. 456; 61
4 Tompkins v. Ins. Co., 53 W. Va. 479; 97 Am. St. Rep. 1006; 44 S. E. 439.
5 Seaton v. Hixon, 35 Kan. 663; 12 Pac. 22.
6 Spear v. Curtis, 40 Vt. 59.
7 Doyle v. Wade, 23 Fla. 90; 11 Am. St. Rep. 334; 1 So. 516.
8 Jones v. Swanson, 3 Head. (Tenn.) 161.
9 Wilhemi v. Ins. Co., 103 la. 532; 72 N. W. 685.
10 McDonald v. Jackson, 55 la. 37; 7 N. W. 408; Hughes v. Brown, 88 Tenn. 578; 8 L. R. A. 480; 13 S. W. 286.
11 Henderson v. Griffin, 5 Pet. (U. 3.) 151; Doyle v. Wade, 23 Fla.
90; 11 Am. St. Rep. 334; 1 So. 516; Hughes v. Brown, 88 Tenn. 578; 8 L. R. A. 480; 13 S. W. 286.
1 Chambers v. Loan Association, 126 Ala. 296; 28 So. 636; Service v. Bank, 62 Kan. 857; 62 Pac. 670; Bank v. Alter, 61 Neb. 359; 85 N. W. 300; Forman v. Brewer, 62 N. J. Eq. 748; 90 Am. St. Rep. 475; 48 Atl. 1012; Hayton v. Beason, 31 Wash. 317; 71 Pac. 1018.
2 Forman v. Brewer, 62 N. J. Eq. 748; 90 Am. St. Rep. 475; 48 Atl. 1012.
3 Nevitt v. Woodburn, 160 111. 203; 52 Am. St. Rep. 315; 43 N. E. 385.
4 Bank v. Weins, 12 Okla. 502; 71 Pac. 1073.
5 Louis Sniders' Sons v. Armendt, 105 Ky. 317; 88 Am. St. Rep. 306; 49 S. W. 10.
6 In equity. Cowan v. Donaldson, 95 Tenn. 322; 32 S. W. 457.
7 Fairbanks v. Farwell, 141 111. 354; 30 N. E. 1056.
8 German Ins. Co. v. Frederick, 58 Fed. 144.
9 Johnson v. Turnell, 113 Wis. 468; 89 N. W. 515.
10 Reliance Trust Co. v. Atherton, - Neb. - ; 93 N. W. 150; Hotch-kiss v. Aukermann, 65 Neb 177; 90 N. W. 949.
11 Hawkins v. Donnerberg. 40 Or. 97 ; 66 Pac. 691; 66 Pac. 908.
12 Bank v. Alter, 61 Neb. 359; 85 N. W. 300.
13 London, etc., Mortgage Co. v. Improvement Co., 84 Minn. 144; 86 N. W. 872.
14 Potts v. Park Association, 84 Minn. 217; 87 N. W. 604.
15 McFaul v. Haley, 166 Mo. 56; 65 S. W. 995.
16 Patrick v. Bank, 63 Neb. 200; 88 N. W. 183.
17 Callaway's Administrator v. Saunders, 99 Va. 350; 38 S. E. 182.
18 McDougald v. Hulet, 132 Cal.
154; 64 Pac. 278; McEwing v. James, 36 O. S. 152; Lenhardt v. French, 57 S. C. 493; 35 S. E. 761; Lewis v. Turnley, 97 Tenn. 197; 30 S. W. 872.
19 Ware v. Howly, 68 la. 633; 27 N. W. 789.
20Steere v. Brownell, 124 111. 27; 15 N. E. 26.
21 Rowan v. Chenoweth, 49 W. Va. 287; 87 Am. St. Bep. 796; 38 S. E. 544.
22 Coxe v. State, 144 N. Y. 396;; 39 N. E. 400.
23 United States v. New York, 160 U. S. 598.
24 Easter v. Riley, 79 Miss. 625; 31 So. 210.
25 Chambers v. Loan Association, 126 Ala. 296; 28 So. 636.
26 Kent v. Savings Union, 130 Cal. 401; 62 Pae. 620.
27 Woodcock v. Bostic, 128 N. C. 243; 38 S. E. 881.
28 Harris v. Schneider Co. (Neb), 91 N. W. 250.
29 Frost v. Witter, 132 Cal. 421; 84 Am. St. Rep. 53; 64 Pac. 705.
30 Service v. Bank, 62 Kan. 857; 62 Pac. 670.
31 Padden v. Clark, - la. - ; 99 N. W. 152.