(concurring specially).
I concur.
I believe it should be pointed out that the lack of timely service of the summons and complaint on Dr. Bernadette V. Libi was apparently due to the negligence of the sheriff, not counsel for the plaintiff. Prop*85er service was made on her husband at the same time the defective service was attempted on her.
I also point out that it may very well be true that the defective service might have been sustained under Section 28-01-38, N.D.C.C., which states that an action is commenced as to one defendant when the summons is served “on a codefendant who is a joint contractor or otherwise united in interest with him.” It is possible that the two Doctors Libi were united in interest, not only by marriage but, more to the point, by being participants in the surgery as to which negligence is alleged in the complaint. But this point was not briefed or argued in this court, nor does it appear to have been raised in the trial court. We therefore do not rule upon it.
The reasons for adopting the discovery rule are just as weighty when the patient is dead as when the patient lives, and sometimes more so. I would prefer, if I could, to apply the discovery rule here. But I defer to the opinion of my fellow judges, supported as it is by the overwhelming weight of authority, and the' clear difference in phraseology of subdivisions 3 and 4 of Section 28-01-18, N.D.C.C., quoted in the majority opinion.