In my opinion, the law governing this case is correctly stated by the majority, save in so far as it is held that, in ruling upon respondents' demurrer, the trial court could not take into consideration the summons and the return of service attached thereto. *Page 88
Our statute makes the fact that an action has not been commenced within the time limited by law ground for a special demurrer. This section of the statute should be so construed as to make the same effective. The date of the filing of the complaint is one element to be considered in determining whether or not a demurrer thereto, upon the ground that the action has not been commenced within the time limited by law, is well taken.
In fixing the date of the commencement of an action by the filing of the complaint, for the purpose of enabling it to intelligently rule upon such a demurrer thereto, we have held that the superior court may take notice of the date of the filing of the complaint, as disclosed by the file marks placed thereon, or upon the cover thereof, by the clerk of the court. Such a file mark is no part of the complaint, and it would seem that, if the mark did not include the date of filing, the court might also take notice of the appearance docket kept by the clerk, for the purpose of ascertaining the date the complaint was filed. It is for the advantage of all concerned that the question of whether or not an action has been commenced within the time limited by law be disposed of speedily and with the least possible trouble and expense to the parties. The convenience of the court is also served by the settling of such a question upon the pleadings, rather than by requiring the parties to answer and go to trial.
In my opinion, the court should, in ruling upon the special demurrer with which we are here concerned, consider the summons as filed in the action, and the return of service thereof, when the matter of the exact date of the commencement of an action becomes, as here, important. These files, while technically not part of the complaint, must often be considered in determining the date of the commencement of an action, and *Page 89 frequently, as in the instant case, will prove to be the determinative factor in passing upon a special demurrer directed against the complaint upon the ground that the action has not been commenced within the time limited by law.
The rule formerly often followed, to the effect that, in such a case as this, where the decisive question is, when was the action commenced, and that question can be positively answered by reference to the summons and the return of service thereof, the bar of the statute of limitations must be raised by plea in abatement or by answer, is extremely technical, and should now, in the interest of speedy and simplified procedure, and in order that full effect may be given to this statutory ground for demurrer, be disregarded. In jurisdictions where the bar of the statute is raised by a general demurrer, there is less reason for the practice which I contend should be the rule than in jurisdictions, like our own, where the statute provides for the presentation of the question by special demurrer.
The files are before the court, the matter is presented upon the record made by the party endeavoring to obtain judgment against his adversary, and I see no reason for requiring the parties to go to the trouble and expense of preparing an answer and raising, in some circuitous manner, an issue of law which can be directly submitted to the court with much less trouble and expense and at a great saving of time in the manner in which the question was presented in the case at bar.
It is suggested in the opinion of the majority that the return of service of the summons is not conclusive, but is subject to attack and correction. This is equally true of the file marks placed upon the complaint by the clerk. If the date of filing is incorrectly disclosed *Page 90 thereby, that matter may certainly be shown and the correct date inserted.
For these reasons, I dissent from the conclusion reached by the majority.
TOLMAN, C.J., and MAIN, J., concur with BEALS, J.