#### OWEN v. CITY OF EASTLAND.

No. 1814—6294.

Commission of Appeals of Texas, Section A.

Jan. 30, 1935.

Frank Judkins, of Eastland, for plaintiff in error.

Turner, Seaberry & Springer, of Eastland, and Goggans & Ritchie, of Dallas, for defendant in error.

HARVEX, Presiding Judge.

On February 27,1924, the city of Eastland brought a suit, in the district court there, against Briggs Owen, on a paving certificate several months before it would have become barred by limitation. In the' case, the city was represented by both resident and nonresident attorneys. On January 26, 1926, the case was dismissed for want of prosecution. On June 6, 1927, one of the resident attorneys for the city in said suit filed a motion to set aside the dismissal judgment, on the ground that same resulted from the fraud of the attorneys who represented Owen in that case. The fraud alleged was, in substance, that said attorneys for Owen, while said suit was pending, agreed that the case was to be set for some day that the attorneys for the respective parties were to agree on; that thereafter, without the knowledge of any of the attorneys for the city, the court, on January 26,1926, called the ease for trial, whereupon said attorneys for Owen, in disregard of their agreement, caused the case to be dismissed for lack of prosecution. The motion did not allege any facts to show the nature of the cause of action upon which said suit was based, or to disclose the merits of the plaintiff’s claim. The paper, on its face, purported to be a motion in said suit, and no citation was ever issued thereon, and none *179was requested. On March 17, 1930, the attorneys for the city filed an amended motion, in lieu of the first-mentioned motion. No citation was ever issued on this amended motion. On April 16, 1931, the city filed another amended pleading in lieu of the two motions mentioned. This pleading was sufficient in every respect to constitute a petition in an independent suit for equitable relief. The fraud of the attorneys for Owen in the original suit was alleged substantially the same as in the motion of June 6, 1927; and the original cause of action was duly alleged. Citation was promptly issued on this petition and served on Owen. In his answer, Owen plead four years’ limitation. The case was tried to the court without a jury. At the trial, the city introduced proof of its claim under the paving certificate. The resident attorney for the city, who filed the motion of June 6, 1927, testified to the alleged agreement regarding the setting of the original case for trial, and to the alleged breach of such agreement by the attorneys for Owen in that ease, and further testified that neither he nor any of the other attorneys for the city in the original case knew that said case had been dismissed until June 1, 1927. At the conclusion of the testimony, the trial court gave judgment for Owen. The Court of Civil Appeals reversed that judgment and rendered judgment for the city. 49 S.W.(2d) 534.

The only question to be decided is whether or not the trial court erred in rendering judgment for Owen on his plea of four years’ limitation. In this respect, it is contended that the motion filed June 6, 1927, contains allegations sufficient to characterize same as a petition instituting this suit. We gravely doubt the soundness of this contention, but since a disposal of the ease does not depend on the question, we shall assume that this was the true character of the paper. With this concession made, the question arises whether the mere filing of such “petition” had effect to arrest the operation of the limitation statute.

The applicable limitation statute'is article 5529, which provides, in effect, that suits of this nature “shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” It is contended that inasmuch as the statute merely provides that the suit shall he “brought,” the filing of the plaintiff’s petition satisfied the statute. As support for this contention, the case of Hannaman v. Gordon (Tex. Com. App.) 261 S. W. 1006, is cited. In that case, a statute dealing with the matter of extension of liens on real estate, with particular regard to third persons, was involved. R. S. of 1911, as amended in 1913; Holford v. Patterson, 113 Tex. 410, 257 S. W. 213; Watson v. Bank (Tex. Com. App.) 285 S. W. 1050; Jolly v. Trust Co., 118 Tex. 58, 298 S. W. 530, 10 S.W.(2d) 539. Whatever else may he said of the holding in the Hannaman Case, the statute involved was different in various respects from the statute now under consideration ; therefore, we shall lay that ease aside and take up the authorities which deal with purely limitation statutes.

Our courts uniformly hold'that the mere filing of suit on a claim does not interrupt the running of limitation. 28 Tex. Jur. p. 192 et seq. It is to be observed that the various decisions there referred to deal with limitation statutes which, in terms, provide that the suit shall be “prosecuted” as well as “commenced.” However, it has been said, in effect, that the mere filing of the plaintiff’s petition is not all that is required to “commence” the suit, within the meaning of the statutes of limitation, “but there must also be a bona fide intention that the process shall be served at once upon the defendant.” Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645, 647. This accords with the well-recognized design of statutes of limitation. At an early day it was held that such statutes are “statutes of repose to quiet titles, to suppress frauds, and to supply the deficiencies of proof arising from the ambiguity, obscurity and antiquity of transactions”; and the rule was laid down that limitation statutes should “receive such interpretation consistent with their terms, as would'defeat the mischief intended to be suppressed, and advance the policy and remedy they were designed to promote.” Gautier v. Franklin, 1 Tex. 732. This, in effect, has been repeated in later cases. Harrison Machine Works v. Reigor, 64 Tex. 89; Howard v. Windom, 86 Tex. 560, 26 S. W. 483. See, also, 17 R. C. L. p. 664. Taking these pronouncements as a guide, no reason occurs for ascribing to the instant statute a design in any respect different from that of the others. It is hardly reasonable to suppose that, in passing this statute, the Legislature considered that the mere filing of the suit within the prescribed time would expel the evil which the statute was designed to reach. It is far more reasonable to conclude that the intention was to afford means by which the defendant in the suit may be relieved of disproving the merits of the claim asserted against him, where, through the fault of the plaintiff, he is not called to defend until the means of disproving same is presumably lost through lapse of time.

*180In the instant case, it is not claimed, and cannot be, that the defendant was called within a reasonable time after the suit was filed on June 6, 1927. It is true that ordinarily it becomes the duty of the clerk to issue citation for the defendant, whenever a petition instituting a suit is filed; but it also must be true that the plaintiff cannot escape responsibility for failure in this respect where, as was the case in this instance, the “petition” purports, on its face, to be a motion in an old suit, and the clerk is not requested to issue citation.

 It is contended further, that since the basis for the equitable relief sought in this case was fraud involving the dismissal judgment in the old suit, and since the fraud was not discovered until June 1, 1927, limitation did not begin to run until that time. This contention involves fact questions which were concluded by the trial court’s judgment. The circumstances appearing in evidence are such that it cannot be said that the uncorroborated testimony of the interested witness for the city conclusively established the various fact elements required to suspend the running of limitation.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

Opinion adopted by the Supreme Court.