sheriff, with intent to have served, is equivalent to commencement of an action, applies to such limitation;1 but otherwise when delivery of process is to one who is not a sheriff or officer.2

1. Hamilton v. Royal Ins. Co., 156 N. Y. 327, 50 N. E. Rep. 863, revg. 81 Hun, 207. And see also Gough v. McFall, 31 App. Div. 578, 52 N. Y. Supp. 221; Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 So. Rep. 183; German Ins. Co. v. Wright, 6 Kans. App. 611, 49 Pac. Rep. 704.

2. Lesure Lumber Co. v. Mutual Ins. Co., 101 Iowa 514, 70 N. W. Rep. 761.

RULE 15.

Filing Præcipe for Summons

Distinction Between Setting Aside Service and Summons.

Filing of a præcipe for a summons or process against an insurance company may be regarded as the commencement of an action, although the summons is not actually served until after the limited time;1 but where the summons is issued and served in proper time, but both the summons and service are vacated and set aside by the court, issue and service of a summons after the limited time are too late;2 but where service only set aside, and writ itself remains in force and there is no termination of the action by nonsuit or dismissal, an alias writ may be properly served even if such service is after the limited time and action is not barred.3

1. Schroeder v. Merchants & Mechanics' Ins. Co., 104 Ill. 71. And see Peoria Ins. Co. v. Hall, 12 Mich. 202.

2. State Ins. Co. v. Stoffels, 48 Kans. 205, 29 Pac. Rep. 479. 3. Everett . Niagara Ins. Co., 142 Pa. St. 322; American Central Ins. Co. v. Haws, Pa. St. , 11 Atl. Rep. 107. And see Virginia F. & M. Ins. Co. v. Vaughan, 88 Va. 832, 14 S. E. Rep. 754.

RULE 16.

Amendment of Summons or Complaint.

A summons cannot be amended as to its date and issue by a second summons to avoid the operation of the limitation clause in the policy; it cannot be treated as an alias;1 but a complaint may be amended after expiration of limited period without introducing a new cause of action.2

1. Peek v. German Ins. Co., 102 Mich. 52, 60 N. W. Rep. 453.

2. Jolinston v. Farmers' Ins. Co., 106 Mich. 96, 64 N. W. Rep. 5; Thomas v. Fame Ins. Co., 108 Ill. 91; Jamison v. State Ins. Co., 85 Iowa, 229, 52 N. W. Rep. 185.

RULE 17.

Amendment as to Name of Party.

A summons or process served on proper party in time may be subsequently amended as to name of such party, when such amendment is authorized by law or statute.

Burton v. Buckeye Ins. Co.. 26 Ohio St. 467.

RULE 18.

Failure of Previous Action - Effect of Statute - Action at Law May be Regarded as Continuance of Prior Suit in Equity.

Failure of a previous action upon the policy as by a dismissal or nonsuit or from any cause cannot alter the effect or change the operative force of the limitation clause, even although the second suit purports on its face to be a renewal of the first action;1 the second suit must be brought within time limited by the policy, even though there is a general statute that a second suit shall be regarded as a continuation of the first."

But where suit is brought in equity to reform policy and a subsequent action is brought at law to recover upon the policy as reformed, latter action may be deemed a continuance of the former; and so where suit fails in equity for reformation, a court having jurisdiction should permit continuance of action at law upon the policy by proper amendment of the complaint.*

1. Nelson v. Phoenix Ins. Co., 97 Ga. 722, 25 S. E. Rep. 189. And see Wilson v. Etna Ins. Co., 27 Vt. 99; McFarland v. Etna Ins. Co., 6 W. Va. 437; McIntyre v. Michigan Ins. Co., 52 Mich. 188; State Ins. Co. v. Stoffel, 48 Kans. 205, 29 Pac. Rep. 479; Hocking v. Howard Ins. Co., 130 Pa. St. 170, 18 Atl. Rep. 614; Riddlebarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; Ward v. Penn. Ins. Co., 82 Miss. 124, 33 So. Rep. 841; Arthur v. Homestead Ins. Co., 78 N. Y. 462; Wilkinson v. Insurance Co., 72 N. Y. 499; Williams v. Greenwich Ins. Co., 98 Ga. 532, 25 S. E. Rep. 31; Smith v. Herd, S. W. Rep. 841.

Ky.

60

2. Harrison v. Hartford Ins. Co., 102 Iowa, 112, 71 N. W. Rep. 220; Wilhelmi v. Des Moines Ins. Co., 103 Iowa, 532, 72 N. W. Rep. 685, 68 N. W. Rep. 782; Chichester v. New Hampshire Ins. Co., 74 Conn. 510, 51 Atl. Rep. 545; Harrison v. Hartford Ins. Co., 67 Fed. Rep. 298; Howard Ins. Co. v. Hocking, 130 Pa. St. 170, 18 Atl. Rep. 614. And see Riddlebarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; McElroy v. Continental Ins. Co., 48 Kans. 200, 29 Pac. Rep. 478.

3. Jacobs v. St. Paul Ins. Co., 86 Iowa, 145, 53 N. W. Rep. 101.

4. New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357. The limitation is no bar when previous case was dismissed contrary to a stipulation. Phoenix Ins. Co. v. Belt R. Co., 182 Ill. 33, 54 N. E. Rep. 1046.

RULE 19.

Suit in Equity May be Regarded as Continuance of Action at Law-Exceptions.

Where an action at law is brought within proper time, filing of a bill in equity for reformation, after

the prescribed time, may be regarded as in aid or continuance of the prior action; otherwise when no previous action brought or is pending,2 or when previous action has been dismissed or terminated by nonsuit.3

1. Rosenbaum v. Council Bluffs Ins. Co., 37 Fed. Rep. 724; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517. And see Hamburg-Bremen Ins. Co. v. Pelzer Mfg. Co., 76 Fed. Rep. 479, 22 C. C. A. 283; Grand View Building Assoc. v. Northern Assur Co., Nebr. 102 N. W. Rep. 246.

2. Thompson v. Phenix Ins. Co., 25 Fed. Rep. 296.

3. Arthur v. Homestead Ins. Co., 78 N. Y. 462. And see Rule 18.

RULE 20.

Statute May Permit New Action After Nonsuit.

Where statute specifically provides that after assured is nonsuited or suffers a nonsuit in action on the policy, he may commence a new action at any time within one year thereafter, it supersedes the limitation clause in the policy.

Lancashire Ins. Co. v. Stanley, 70 Ark. 1, 62 S. W. Rep. 66.

RULE 21.

Effect of Garnishee or Attachment Proceedings — Injunction Relief by Cross-Bill.

Garnishee or attachment proceedings may be sufficient commencement of suit in limited time;1 but an injunction restraining the assured from collecting claim under the policy does not suspend the limitation clause; suit must be brought in limited time; but assured may obtain relief by cross-bill in same suit.3

1. Harris v. Phoenix Ins. Co., 35 Conn. 310; Ritter v. Boston Underwriters, 28 Mo. App. 140.

2. Wilkinson v. First National Ins. Co., 72 N. Y. 499. 3. See Rule 25.

RULE 22.

Effect of Bad Faith on Part of Company Retaining Policy and Refusing Copy.

When an action at law upon the policy is dismissed in consequence of the insurance company in bad faith taking and keeping possession of the policy, and refusing to furnish a copy, and a bill is subsequently filed in equity to obtain proper relief by reformation, the limitation clause is no bar to the suit.

Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 So. Rep. 887.

RULE 23.

-Time Neces

Effect of Insurance of a Mechanic's Lien Interest sarily Extended by Provisions of Policy.

Where a mechanic's lien interest is insured and its value cannot be ascertained in time, it operates to suspend the limitation clause or render it inoperative;1 and so where it is impossible to comply with provisions of the policy before expiration of the prescribed time.*

1. Longhurst v. Star Ins. Co., 19 Iowa, 364; Stout v. City Ins. Co., 12 Iowa, 371.

2. Case v. Sun Ins. Co., 83 Cal. 473. Hamilton Ins. Co., 10 Bosw. 537.

RULE 24.

And see Mayor v.

No Substitution of New Cause of Action by Amendment After Limited Time.

After the expiration of the time limited in the policy for the commencement of an action to recover a loss thereunder, the plaintiff cannot amend so as to change