25-217 Action; commencement; defendant not served; effect. - Nebraska Statutes

25-217. Action; commencement; defendant not served; effect.An action is commenced on the date the complaint is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the complaint was filed. SourceR.S.1867, Code § 19, p. 396; R.S.1913, § 7580; C.S.1922, § 8523; C.S.1929, § 20-217; R.S.1943, § 25-217; Laws 1979, LB 510, § 1; Laws 1986, LB 529, § 21; Laws 2002, LB 876, § 5. Cross ReferencesFor commencement of action, see section 25-501. Annotations1. Issuance and service2. Effect3. Amendment4. Miscellaneous1. Issuance and serviceThe provisions of this section requiring service of process are not applicable to condemnation actions. Wooden v. County of Douglas, 275 Neb. 971, 751 N.W.2d 151 (2008).Pursuant to this section, an action is dismissed by operation of law as to any defendant who is named and who is not served with process within 6 months after the complaint is filed. Reid v. Evans, 273 Neb. 714, 733 N.W.2d 186 (2007).In the case of substitute service by publication under section 25-519, service is not "made" until the third publication, and prior to the third publication, a defendant is "not served" under this section. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).Where service by publication has been approved, a defendant is not served within 6 months from the date the petition was filed under this section unless the third publication under section 25-519 has occurred within 6 months from the date the petition was filed. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).For purposes of determining whether an action is time barred, an action is commenced on the date the petition is filed. Kocsis v. Harrison, 249 Neb. 274, 543 N.W.2d 164 (1996).One's notice and demand for payment from a dissolved corporation does not constitute commencement of an "action" or "proceeding" as contemplated by section 21-20,104. Under the provisions of this section, an action is commenced on the date the petition is filed with the court. Licht v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566 (1990).Criterion of commencement of action for limitation purposes is date summons served on defendant. Schmer v. Gilleland, 185 Neb. 54, 173 N.W.2d 391 (1970).Filing without issuance of a summons is not commencement of an action. Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968).An action is commenced at the date of the summons which is served upon the defendant. Gorgen v. County of Nemaha, 174 Neb. 588, 118 N.W.2d 758 (1962).As to defendant, action is deemed commenced at date of summons which is served on him. Ramirez v. Chicago, B. & Q. R. Co., 116 Neb. 740, 219 N.W. 1 (1928).Action is begun when petition is filed and summons issued thereon. Mosher v. Huwaldt, 86 Neb. 686, 126 N.W. 143 (1910).Action is not deemed commenced at date of issuance of summons, unless same is served. Reliance Trust Co. v. Atherton, 67 Neb. 305, 93 N.W. 150 (1903), rehearing denied 67 Neb. 309, 96 N.W. 218 (1903).Action is commenced at the date of the summons which is served upon the defendant. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898); Burlingim v. Cooper, 36 Neb. 73, 53 N.W. 1025 (1893).Issuance of summons against one, not a necessary party to suit, to foreclose mechanic's lien is not commencement of suit against nonresident. Pickens v. Polk, 42 Neb. 267, 60 N.W. 566 (1894).This section does not allow Nebraska courts to extend the time for service of process, even in a case in which the wrong defendant was served within the 6‑month grace period after filing a petition, because it is a self‑executing statute which deprives a lower court of jurisdiction to take any further action in the case once the 6 months has run. Smeal v. Olson, 10 Neb. App. 702, 636 N.W.2d 636 (2001).An action stood dismissed by operation of law upon the passing of 6 months after the filing of the petition, where the defendants were not served process and their voluntary appearances were entered more than 6 months after the date the petition was filed. Vopalka v. Abraham, 9 Neb. App. 285, 610 N.W.2d 433 (2000).The phrase "shall stand dismissed" means that an action is dismissed if 6 months from the filing of the petition passes without service upon the defendant, without the need for initiating action by the defendant, and without the need for a formal entry of an order of dismissal by the trial court. The dismissal mandated by this section is self-executing. When a lawsuit is dismissed by operation of law for lack of service of process within 6 months of filing, the trial court has no jurisdiction to make orders thereafter and if made, they are a nullity, as are subsequent pleadings. Cotton v. Fruge, 8 Neb. App. 484, 596 N.W.2d 32 (1999).Service of process not proper and regular, and was therefore quashed. Stoehr v. American Honda Motor Co., Inc., 429 F.Supp. 763 (D. Neb. 1977).2. EffectWhere original action was timely instituted, amended petition filed after running of statute of limitations, declaring on same cause of action, is not barred. Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471 (1935).Summons must be issued before bar of statute of limitations is complete. Ballard v. Thompson, 40 Neb. 529, 58 N.W. 1133 (1894).Summons must be issued before bar of statute is complete, although it may be served afterward. Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N.W. 567 (1894).In action filed in federal court by Nebraska resident against California resident, Nebraska rule that action is deemed commenced at date of summons which is served is applicable. Gatliff v. Little Audrey's Transportation Co., Inc., 317 F.Supp. 1117 (D. Neb. 1970).3. AmendmentFor the purpose of applying the relation-back doctrine to a defendant named for the first time in an amended petition, the period during which the new defendant must be shown to have had the requisite knowledge of the suit includes the statutory period prescribed for the filing of the original petition plus the additional 6-month period in which summons could be served pursuant to this section. Smeal v. Olson, 263 Neb. 900, 644 N.W.2d 550 (2002).Summons on appeal from compensation award may be amended by district court to correct date of return, notwithstanding objections to jurisdiction. Keil v. Farmers' Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).4. MiscellaneousThe effect of a dismissal without prejudice is the same as if the case had been dismissed pursuant to this section, meaning that another petition may be filed against the same parties upon the same facts as long as it is filed within the applicable statute of limitations. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).The language of this section providing for dismissal of unserved petitions is self-executing and mandatory. After dismissal of an action by operation of law pursuant to this section, there is no longer an action pending and the district court has no jurisdiction to make further orders except to formalize the dismissal. If orders are made following a dismissal by operation of law under this section, they are a nullity, as are subsequent pleadings. Kovar v. Habrock, 261 Neb. 337, 622 N.W.2d 688 (2001).The language of this section providing for dismissal of unserved petitions is self-executing and mandatory. A defendant's voluntary appearance does not waive the operation of this section. After dismissal of an action by operation of this section, a trial court has no jurisdiction to make orders thereafter, except to formalize the dismissal. Vopalka v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000).The limitation statutes found within Chapter 25, article 2, apply to counterclaims, and pursuant to this section, whether a counterclaim is barred is determined by the date the related petition was filed, rather than the date the counterclaim was filed. Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999).Where there is no voluntary appearance and summons is not served, the court lacks personal jurisdiction over a party. Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520 (1999).Excluding September 5, 1969, the last day on which work was done, the last day of the four-year period of limitations was September 5, 1973. George P. Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976).If record on appeal does not disclose date when action was commenced, Supreme Court will not take judicial notice thereof. Newberg v. Chicago, B. & Q. R. Co., 120 Neb. 171, 231 N.W. 766 (1930).In absence of service of summons, date of voluntary appearance is the date the action is deemed commenced. Hotchkiss v. Aukerman, 65 Neb. 177, 90 N.W. 949 (1902).The language "shall stand dismissed" is mandatory and self-executing, which means that an action may be dismissed without the need for initiating action, such as a motion by the defendant, and without the need for a formal entry of an order of dismissal by the trial court. Such dismissals occur by operation of law. McDaneld v. Fischer, 8 Neb. App. 160, 589 N.W.2d 172 (1999).